• Key point 2-04.1. Most courts have concluded that they are barred by the First Amendment guarantees of religious freedom and nonestablishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.
* A California court ruled that a church’s music minister who was dismissed after it was learned that he was homosexual could sue the church and church leaders for defamation and invasion of privacy as a result of statements made to the staff and congregation. Shawn was employed by a church for nearly ten years, first as a part-time piano player, then as worship minister, and finally as worship director. Shawn is homosexual, but never revealed his sexual orientation to any of the church elders because of his perception that they had a “personal hostility to homosexuals.” However, Shawn conceded that the church had no specific doctrinal position on homosexuality, but that some individual church leaders were personally opposed to homosexuality based on their understanding of the Bible. No one at the church ever asked him about his sexual orientation for the many years that he was an employee. Church elders eventually learned of his sexual orientation and terminated his employment. The day after Shawn’s termination, certain church leaders allegedly made the following statements to the church staff, and repeated these statements the following weekend to the whole congregation during four separate services: (1) Shawn admitted to moral and sexual actions that are a sin; (2) Shawn had disqualified himself from leadership through a breakdown in character; (3) Shawn was caught in a sin; (4) Shawn was a broken man who needed to be restored; and (5) Shawn was asked 40 or 50 times if he was a homosexual and he lied and said that he was not.
According to Shawn, these statements were false and the pastor and elders who made them knew they were false. Shawn complained that these statements destroyed his career in church ministry, and caused him humiliation and severe emotional distress. With regard to his invasion of privacy claim, Shawn alleged that he had “lived an ordinary private life” and had “never made any public statement about his sexual orientation,” and “did not consent to have his sexual orientation made public in a derogatory and negative way, or at all.” He sued the church, and certain church leaders, for defamation and invasion of privacy. The trial court dismissed the lawsuit on the ground that it would require the court to meddle in “ecclesiastical” matters. Shawn appealed.
A state appeals court reversed the trial court’s decision, and allowed the case to proceed to trial.
Statements concerning matters of religious opinion
The court acknowledged that “any determination concerning the truth or falsity of statements accusing Shawn of being caught in a sin, having admitted to moral and sexual actions that are a sin, being a broken man, or having disqualified himself from leadership through a breakdown in character would necessarily require a finding of what is and is not moral and sinful within the beliefs of the church” in violation of the First Amendment guaranty of religious freedom.
However, the court concluded that one of the statements allegedly made by church leaders to the congregation was free from religious opinion: “Shawn had been asked 40 or 50 times if he were homosexual and had lied and said that he was not.” The court noted that whether Shawn lied “does not require interpretation of religious doctrine. Similarly, a determination whether informing the staff and congregation that Shawn was homosexual invaded his privacy does not implicate religious precepts.”
The ministerial exception
The courts generally have ruled that they are barred by the First Amendment from resolving employment disputes between ministers and churches. This so-called ministerial exception is based on the principle that “a church’s selection of its own clergy is a core matter of ecclesiastical self-governance with which the state may not constitutionally interfere. A church must retain unfettered freedom in its choice of ministers because ministers represent the church to the people …. They act as the church’s lifeblood. Indeed, the ministerial relationship lies so close to the heart of the church that it would offend the First Amendment simply to require the church to articulate a religious justification for its personnel decisions.”
The court conceded that the ministerial exception can apply to claims of defamation and invasion of privacy when based on statements “related to the hiring, firing, discipline or administration of clergy.” But, it noted that “no court has articulated a bright-line test for determining when defamatory and privacy invading statements are related to the termination of a minister.” The court concluded, on procedural or “technical” grounds, that in reviewing a lower court’s dismissal of a lawsuit, its review is limited to the allegations contained in the original complaint. And, since it could not determine “from the face of the complaint whether making the statements falls within, or is outside of, the ministerial exception, the [trial court’s] judgment must be reversed.” The court continued:
Shawn’s complaint sets forth the essential allegations of his defamation and invasion of privacy causes of action. He alleged that after being terminated from his ministerial position because of his homosexuality, church officials not only publicly announced the fact of his homosexuality to the entire congregation, but wrongly stated Shawn had lied to them on 40 to 50 occasions denying his homosexuality. Shawn alleged the defendants knew the latter statement to be false, he in fact had never been questioned about his sexual orientation, and the defendants made the statements with the specific intent to injure him. But the complaint contains no facts from which we can say there was an ecclesiastical purpose for any statements being made to the entire congregation after Shawn’s employment was terminated. We cannot say from the record before us the defendants’ statements were “part and parcel” of the defendants’ ecclesiastical functions, or “inseparable parts of a process of divestiture of priestly authority. Indeed, the complaint suggests the statements were motivated by the individual defendants’ purely personal enmity towards homosexuals, not in furtherance of any “religious doctrine or theology of the church,” and arguably not in furtherance of an ecclesiastical purpose or part of an ecclesiastical function.
One judge dissented from the court’s ruling, and chastised the majority for closing its eyes to the fact that Shawn’s complaint clearly contained enough allegations to trigger the ministerial exception. The dissenting judge noted:
We simply cannot escape the fact that this case involves a minister who was fired over a theological matter, and who has brought a defamation suit intimately connected to that firing …. The one defamation was made as part of a group of statements involving a theological theme, made during services, involving a theologically controversial matter, made at the first opportunity to explain the firing of a clergyperson and made using “Biblical texts” to boot. The connection between the defamation and the firing virtually oozes from the complaint.
Application. Consider the following points:
1. In one sense this is a narrow ruling. The court concluded that in reviewing a lower court’s dismissal of a lawsuit it must limit its analysis to the allegations set forth in the original complaint, and Shawn’s complaint simply did not contain enough allegations to prove that the comments made by church leaders to the congregation during a worship service regarding the reasons for his termination were sufficiently linked to “the hiring, firing, discipline or administration of clergy” to compel the dismissal of the case on the basis of the “ministerial exception.” This is a bizarre result, for it suggests that clergy can avoid the dismissal of an employment-related lawsuit (in California, or in any other state that recognizes the same rule) by simply omitting all references to church employment and theology in their complaint. Few courts would agree with this conclusion. Second, as the dissenting judge observed, “the connection between the defamation and the firing virtually oozes from the complaint”-a fact that was inexplicably ignored by the court.
2. The court conceded that four of the comments made by church leaders to the congregation during a worship service following Shawn’s termination could not serve as the basis for liability (on the basis of either defamation or invasion of privacy). Those statements were as follows: (1) Shawn admitted to moral and sexual actions that are a sin; (2) Shawn had disqualified himself from leadership through a breakdown in character; (3) Shawn was caught in a sin; and (4) Shawn was a broken man who needed to be restored. The court acknowledged that any attempt to hold the church liable on the basis of these comments “would necessarily require a finding of what is and is not ‘moral’ and ‘sinful’ within the beliefs of the church. We cannot undertake such a mission.”
On the other hand, the court concluded that a fifth statement made by church leaders was “free from religious opinion,” namely, that Shawn had been asked 40 or 50 times if he was a homosexual and he lied and said he was not. The court concluded that “the question as to whether Shawn lied does not require adjudication of a religious doctrine. Similarly, a determination whether informing the staff and congregation that Shawn was homosexual invaded his privacy does not implicate religious precepts.” There is in important lesson here for church leaders. When explaining the reason for dismissing an employee, church leaders should refer to biblical or doctrinal positions of the church that were violated by the dismissed employee. This can be done in general terms (e.g., “Tim confessed to acts that violate the ethical and scriptural standards of the church”) without having to divulge the details of what an employee did. It is important for a church to receive legal counsel before making any public statements regarding the reasons for dismissing an employee.
3. It is interesting to note that the court failed to mention the legal principle of “qualified privilege.” Generally, comments made among church members and regarding matters of common interest enjoy a qualified privilege, meaning that they cannot be defamatory unless they are made with “malice.” In this context, malice means a knowledge that the statements were false, or a reckless disregard as to their truth or falsity. It is important to note that this privilege only applies to statements made to members, and assumes that the members have a legitimate need to receive the information. It does not apply to statements made in a worship service in which non-members are present. This means that it will be much easier for a church to be sued for defamation for information shared during church services in which non-members are present than in a special meeting that is restricted to members only. The court noted that the statements made by the church leaders in this case were made in a worship services. Presumably, non-members were present. If so, this would expose the church to a greater risk of liability for defamation. However, the court failed to address this issue, or its possible significance in this case.
4. If at all possible, church leaders should have a dismissed employee sign a written confession that (1) admits to wrongdoing (in general or specific terms, depending on the circumstances), and (2) consents to a pastor or board member reading the confession to the staff and congregation.
5. Obviously, the dismissal of an employee may involve legal pitfalls and risks, and therefore it is important for a church to retain an attorney who can assist church leaders in making decisions in light of legal considerations. Gunn v. Mariners Church, 2005 WL 1253953 (Cal. App. 2005, unpublished).
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