Key point 4-04. Many states recognize “invasion of privacy” as a basis for liability. Invasion of privacy may consist of any one or more the following: (1) public disclosure of private facts; (2) use of another person’s name or likeness; (3) placing someone in a “false light” in the public eye; or (4) intruding upon another’s seclusion.
A Michigan appellate court affirmed a lower court’s ruling that the mother (the “plaintiff”) of a suicide victim was barred by the ecclesiastical abstention doctrine from suing a pastor who, contrary to her insistence upon confidentiality, still disclosed the suicide during the victim’s funeral homily.
In early December 2018, a young man committed suicide. This fact was not publicly disclosed or known to anyone but close family and friends.
The day after their son’s death, the decedent’s parents went to their church and spoke with the pastor to plan their son’s funeral. The pastor informed them that he could conduct a funeral service just a few days later and discussed the format of the service with them.
The parents advised the pastor that they “wanted to celebrate their son’s life and asked that the homily be positive, uplifting, and focused on the importance of kindness.” The pastor agreed to conduct the service in the manner the parents requested.
At no point did the parents inform the pastor that their son had committed suicide, nor did the pastor state he was aware of their son’s cause of death.
On the day of the funeral, “numerous family members, friends, classmates, and community members were in attendance.” The service began and continued as expected until the pastor gave his homily. At that point, the pastor informed those in attendance that the deceased had committed suicide.
According to the plaintiff, “[m]any in attendance . . . immediately became upset and burst out crying.” The pastor’s discussion of suicide stated that it was “condemned by the Church,” a “secular crime,” and “a sin against God with dire eternal consequences.”
As the pastor’s sermon progressed, the deceased’s father approached the pulpit and “pleaded” with the pastor to stop his discussion of suicide. But the pastor did not relent and “openly questioned the eternal fate” of the deceased.
The ecclesiastical abstention doctrine
The plaintiff sued the pastor, church, and archdiocese (the “church defendants”) alleging five bases of liability: (1) intentional infliction of emotional distress; (2) misrepresentation; (3) invasion of privacy; (4) vicarious liability; and (5) negligent hiring, supervision, or retention.
The church defendants asked the court to dismiss the case, arguing that the plaintiff’s claims were barred by the ecclesiastical abstention doctrine because they involved questions of ecclesiastical polity. The church defendants also argued that the pastor’s homily constituted protected speech and, even if the plaintiff’s claims could be adjudicated, they failed as a matter of law.
The plaintiff insisted that the ecclesiastical abstention doctrine did not apply because this case concerned the pastor’s conduct, “not the Church’s creed,” his speech was not protected, and the plaintiff sufficiently stated valid claims against each defendant. The trial court concluded the ecclesiastical abstention doctrine “clearly” applied to the pastor’s sermon and dismissed the lawsuit. The plaintiff appealed.
The appeals court noted this about the ecclesiastical abstention doctrine:
Our Supreme Court has stated that the applicability of the ecclesiastical abstention doctrine in Michigan
reflects [the] Court’s longstanding recognition that it would be “inconsistent with complete and untrammeled religious liberty” for civil courts to “enter into a consideration of church doctrine or church discipline,” to “inquire into the regularity of the proceedings of church tribunals having cognizance of such matters,” or “to determine whether a resolution was passed in accordance with the canon law of the church, except insofar as it may be necessary to do so, in determining whether or not it was the church that acted therein.”
Under the ecclesiastical abstention doctrine, a civil court cannot “substitute its opinion in lieu of that of the authorized tribunals of the church in ecclesiastical matters.” Therefore, the ecclesiastical abstention doctrine “operates to ensure that, in adjudicating a particular case, a civil court does not infringe the religious freedoms and protections guaranteed under the First Amendment.” But the doctrine does not “purport to deprive civil courts of the right to exercise judicial power over any given class of cases.” . . . “What matters instead is whether the actual adjudication of a particular legal claim would require the resolution of ecclesiastical questions; if so, the court must abstain from resolving those questions itself, defer to the religious entity’s resolution of such questions, and adjudicate the claim accordingly.” Thus, the ecclesiastical abstention doctrine “requires a case-specific inquiry that informs how a court must adjudicate certain claims within its subject matter jurisdiction; it does not determine whether the court has such jurisdiction in the first place” [citations omitted].
The appeals court concluded that the trial court did not err when it decided the ecclesiastical abstention doctrine barred the plaintiff’s claims. Any attempt to resolve the plaintiff’s claims would require decisions regarding matters of church doctrine and polity, which the doctrine prohibits.
The plaintiff had argued that her lawsuit did not seek resolution of religious issues. Rather, she asserted her claims “concern an agreement by [the pastor] to preside over the funeral service for her son—for which [the pastor] was compensated through a donation—in accordance with requests from the family regarding the content of the funeral service.”
But the actual adjudication of each of the plaintiff’s claims “would require an inquiry into religious doctrine and practices regarding sermons and funeral services, suicide, as well as why [the pastor] chose the words that he did, and personnel issues regarding hiring practices of the Catholic Church,” the appeals court said.
The appeals court addresses each claim
The appeals court still briefly addressed each of the plaintiff’s claims.
Infliction of emotional distress
In the trial court, the plaintiff had argued that the pastor’s behavior at the funeral amounted to an “intentional infliction of emotional distress.”
To establish a claim for intentional infliction of emotional distress, a plaintiff must prove that: (1) the conduct giving rise to the claim was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe.
The defendant’s conduct must be “so extreme in degree,” as to go “beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” The trial court concluded that the church’s conduct did not meet this strict standard. It also ruled that this claim was barred by the ecclesiastical abstention doctrine.
The appeals court concluded that the trial court properly applied the ecclesiastical abstention doctrine to bar the plaintiff’s claim for intentional infliction of emotional distress.
It stressed that “to find that the content of [the pastor’s] homily at the funeral regarding the suicide of the plaintiff’s son was ‘extreme’ or ‘outrageous’ would require the trial court to evaluate Catholic philosophy and doctrine regarding suicide, and whether [the pastor] complied with it.” It would also require “evaluation of procedures for developing and providing religious sermons, which are unequivocally ecclesiastical in nature.”
Misrepresentation and invasion of privacy
The appeals court said the trial court had not erred “when it concluded the ecclesiastical abstention doctrine barred plaintiff’s claims of misrepresentation and invasion of privacy.”
The plaintiff’s claim alleged, in part, that the pastor agreed to deliver a positive, uplifting sermon but, instead, spoke about “the nature of her son’s death,” and how it constituted a sinful act that brought into question “her son’s eternal salvation.”
Further, the plaintiff asserted the pastor “should have known that the cause of death ‘was a personal matter and not of public concern,’ and disclosure of the cause of death ‘was not consistent with any legitimate pastoral duty and/or concern to the public.’”
In rejecting both the misrepresentation and invasion of privacy claims, the appeals court stated:
[A]s with plaintiff’s claim of intentional infliction of emotional distress, evaluation of her misrepresentation and invasion-of-privacy claims requires an inquiry into the decision-making process behind drafting and giving religious sermons, as well as into Catholic doctrine and teachings regarding suicide. . . . [T]he trial court properly concluded that resolution of these claims would require evaluating religious doctrines and, by extension, trigger the ecclesiastical abstention doctrine.
Additionally, regarding the invasion of privacy claim, the appeals court referenced a 1991 Michigan Supreme Court opinion that cited this passage from the Restatement Torts, 2d:
The right protected by the action for invasion of privacy is a personal right, peculiar to the individual whose privacy is invaded. The cause of action is not assignable, and it cannot be maintained by other persons such as members of the individual’s family, unless their own privacy is invaded along with his.
The appeals court then stated it agreed with the trial court’s conclusion:
Consequently, the trial court was correct in concluding that the plaintiff had no cognizable privacy interest in the fact that her son committed suicide.
Vicarious liability and negligent hiring, supervision, or retention
The appeals court concluded that the ecclesiastical abstention doctrine also precluded the plaintiff’s claims for vicarious liability and negligent hiring, supervision, or retention.
Under the claim of vicarious liability, the plaintiff alleged, in part, that the pastor was under the supervision and control of the archdiocese and he “act[ed] in his special role of priest and adviser, using the premises of the Archdiocese’s parish,” and the “trust, power and the authority his position granted him.”
And, under the claim for negligent hiring, supervision, and retention, the plaintiff alleged that the pastor was “unfit and/or incompetent to perform” his pastoral duties and that the archdiocese “knew, or should have known, that he previously engaged in similar conduct as that alleged [by the plaintiff].” The plaintiff alleged that despite the archdiocese’s knowledge of the pastor’s incompetence, it still “hired, supervised, and retained him as the pastor of [the church].”
In response, the appeals court stated:
As [the church] defendants point out, however, “[t]he Roman Catholic Church is an hierarchical organization and the Bishop’s power to make assignments of ministers to a parish is certainly a matter of ecclesiastical polity in which the courts may not interfere.” . . . This point has been repeatedly reaffirmed by other Courts. . . . [T]he “authority to select and control who will minister to the faithful—a matter strictly ecclesiastical—is the church’s alone.”
As a result, the appeals court said, the trial court properly dismissed the plaintiff’s claim involving the hiring, supervision, and retention of the pastor “as those decisions by the Church are constitutionally protected.”
The appeals court also rejected the vicarious liability claim, noting the pastor’s “actions were constitutionally protected, and there can be no liability for a principal if the agent has committed no actionable wrong.”
In sum, the appeals court concluded:
[The pastor’s] conduct was protected by the ecclesiastical abstention doctrine. As such, we cannot pass judgment on the content of his sermon. Consequently, all of plaintiff’s claims necessarily fail.
What this means for churches
Pastors sometimes say things in a sermon that offend some listeners. This case demonstrates that such offenses generally will not expose the pastor or church to liability because of the ecclesiastical abstention doctrine, which bars the civil courts from resolving internal church disputes involving doctrinal issues.
It is also important to note, as this appeals court observed, that “invasion of privacy” is a personal right, “peculiar to the individual whose privacy is invaded,” and therefore “cannot be maintained by other persons such as members of the individual’s family, unless their own privacy is invaded along with his.”
Hullibarger v. Archdiocese, 2021 WL 2877973 (Mich. App. 2021)