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Remedies for Improper Discipline or Dismissal

§ 6.10.04
Key point 6-10.04. Courts willing to intervene in disputes challenging the discipline of a church member have granted a variety of remedies to an improperly disciplined member, including reinstatement or monetary damages for defamation or emotional distress.

1. DECISIONS REFUSING TO RECOGNIZE A LEGAL REMEDY

Obviously, courts that follow the rule of non-intervention in internal church membership determinations will not provide disciplined or dismissed members with any legal remedy since no cognizable legal harm has occurred.[326] See, e.g., John v. Estate of Hartgerink, 528 N.W.2d 539 (Iowa 1995) (defamation, intentional infliction of emotional distress); Glass v. First United Pentecostal Church, 676 So.2d 724 (La. App. 1996) (defamation, intentional infliction of emotional distress); Schoenhalls v. Main, 504 N.W.2d 233 (Minn. App. 1993) (defamation, fraud); Hadnot v. Shaw, 826 P.2d 978 (Okla. 1992) (defamation and intentional infliction of emotional distress). To illustrate, a federal court in New York ruled that it had no authority to stop a religious organization from excommunicating one of its members.[327] Grunwald v. Bornfreund, 696 F. Supp. 838 (E.D.N.Y. 1988). The member had been threatened with excommunication because of a lawsuit he had filed against the religious organization. The court observed:

A long line of Supreme Court cases holds that, where a religious body adjudicates relations among its members, courts will not interfere with the decisions of those bodies made in accordance with those bodies' rules. This line of cases is based on the Court's observation that voluntary religious organizations are much like any other voluntary organization and are in the best position to interpret their own rules. As the Court stated in [a previous decision]: "It is not to be supposed that the judges of the civil courts can be as competent in ecclesiastical law and religious faith … as the ablest men in each [faith] are in reference to their own. …" Thus, federal courts will not interfere with the decisions of a religious body adjudicating the relationships of members in that body; as a matter of jurisprudence federal courts will defer to the decision of the religious body.[328] Id. at 840.

The court also noted that "in other cases, the Supreme Court has held that it is contrary to the First Amendment for a court, either federal or state, to engage in an examination of ecclesiastical doctrine, and unless such examination cannot be avoided, a court must defer to the decisions of a religious body." The court noted that in this case, the member had asked the court "to do something it is not able to do either as a matter of federal jurisprudence or under the First Amendment: decide whether [he] should be excommunicated from his religious community for prosecuting this suit. …" The court acknowledged that if the member were in fact threatened with imminent physical harm, then "he could come to this court for a remedy." However, "the mere expulsion from a religious society, with the exclusion from a religious community, is not a harm for which courts can grant a remedy." In conclusion, the court permitted the member to pursue a judicial resolution of his dispute with the religious organization, and ruled that the member's threatened excommunication was "beyond the powers of this court to stop, so long as the excommunication results in nothing more than [the member] being excluded from his religious community."

Case study. A federal appeals court refused to permit a "disfellowshiped" Jehovah's Witness to sue her former church for defamation, invasion of privacy, fraud, and outrageous conduct. The disfellowshiped member claimed that she had been aggrieved by the Jehovah's Witness practice of "shunning," which requires members to avoid all social contacts with disfellowshiped members. The court, acknowledging that the harm suffered by disfellowshiped members is "real and not insubstantial," nevertheless concluded that permitting disfellowshiped members to sue their church for emotional injuries "would unconstitutionally restrict the Jehovah's Witness free exercise of religion." The constitutional guaranty of freedom of religion, observed the court, "requires that society tolerate the type of harm suffered by [disfellowshiped members] as a price well worth paying to safeguard the right of religious difference that all citizens enjoy."[329] Paul v. Watchtower Bible and Tract Society of New York, 819 F. 2d 875 (9th Cir. 1987).
Case study. A Michigan court ruled that the First Amendment guaranty of religious freedom provides churches with substantial protection when disciplining members.[330] Smith v. Calvary Christian Church, 592 N.W.2d 713 (Mich. App. 1998). See also Maciejewski v. Breitenbeck, 413 N.W.2d 65 (Mich. App. 1987). This protection extends to statements made by a minister to the church during worship services or in church publications. But when a member resigns from the church prior to being disciplined, a more difficult question is presented. The court drew a distinction between the discipline of members and nonmembers. It concluded that churches have limited constitutional protection when disciplining nonmembers, meaning that such individuals are more likely to succeed in pursuing legal action against their former church.

2. DECISIONS RECOGNIZING A LEGAL REMEDY

The Guinn Case

Those courts that have followed the rule of "marginal civil court review" of internal church membership determinations occasionally will recognize that improperly disciplined or dismissed members have a legal remedy against their church. The best illustration of this is a 1989 ruling of the Oklahoma Supreme Court.[331] Guinn v. Church of Christ, 775 P.2d 766 (Okla. 1989). But see Hadnot v. Shaw, 826 P.2d 978 (Okla. 1992)(civil courts cannot review a church's discipline of persons who have not withdrawn from church membership). Because of the significance of this ruling, it will be considered in detail.

In 1974, a single woman (the "parishioner") moved with her minor children to Collinsville, Oklahoma, and soon became a member of a local Church of Christ congregation. The first few years of the parishioner's association with the church were without incident. In 1980, however, three "elders" of the church confronted the parishioner with a rumor that she was having sexual relations with a local resident who was not a member of the congregation. According to the elders, they investigated the rumor because of the church's teaching that church leaders are responsible to monitor the actions of church members and confront and discuss problems with anyone who is "having trouble." The Church of Christ follows a literal interpretation of the Bible, which it considers to be the sole source of moral and religious guidance.

When confronted with the rumor, the parishioner admitted violating the Church of Christ prohibition against fornication. As a transgressor of the church's code of ethics, the parishioner became subject to the disciplinary procedure set forth in . This procedure provides, "If thy brother shall trespass against thee, go and tell him his fault between thee and him alone; if he shall hear thee, thou has gained thy brother. But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established. And if he shall neglect to hear them, tell it unto the church; but if he neglect to hear the church, let him be unto thee as a heathen man and a publican." Pursuant to this procedure, the church elders confronted the parishioner on three occasions over the course of a year. On each occasion, the elders requested that the parishioner repent of her fornication and discontinue seeing her companion. On September 21, 1981, a few days following the third encounter, the elders sent the parishioner a letter warning her that if she did not repent, the "withdrawal of fellowship" process would begin.

Withdrawal of fellowship is a disciplinary procedure that is based on Matthew 18 and carried out by the entire membership in a Church of Christ congregation. When a member violates the church's code of ethics and refuses to repent, the elders read aloud to the congregation those Scripture passages which were violated. The congregation then withdraws its fellowship from the wayward member by refusing to acknowledge his or her presence. According to the elders, this process serves the dual purpose of encouraging transgressors to repent and return to fellowship with other members, and it maintains the purity and holiness of the church and its members. The parishioner had seen one incident of fellowship withdrawal, and was fully aware that such a process would result in the publication of her unscriptural conduct to the entire congregation. Accordingly, she contacted a lawyer who sent the elders a letter signed by the parishioner, and dated September 24, 1981, in which the parishioner clearly stated that she withdrew her membership. The attorney asked the elders not to expose the parishioner's private life to the congregation (which comprised about five percent of the town's population).

On September 25, the parishioner wrote the elders another letter imploring them not to mention her name in church except to tell the congregation that she had withdrawn from membership. The elders ignored these requests, and on September 27 (during a scheduled service) they advised the congregation to encourage the parishioner to repent and return to the church. They also informed the congregation that unless the parishioner repented, the verses of Scripture that she had violated would be read aloud to the congregation at the next service and that the withdrawal of fellowship procedure would begin. The parishioner met with one of the elders during the following week, and she was informed that her attempt to withdraw from membership was not only doctrinally impossible, but could not halt the disciplinary process that would be carried out against her. The parishioner was publicly branded a fornicator when the scriptural standards she had violated were recited to the congregation at a service conducted on October 4. As part of the disciplinary process the same information regarding the parishioner's transgressions was sent to four other area Church of Christ congregations to be read aloud during services.

The parishioner sued the three elders and local church, asserting that their actions both before and after her withdrawal from church membership on September 25, 1981 (the date of her letter to the church), invaded her privacy and caused her emotional distress. The invasion of privacy claim alleged that the elders and church had "intruded upon her seclusion," and in addition, had "unreasonably publicized private facts about her life by communicating her transgressions to the [home church] and four other area Church of Christ congregations." A jury ruled in favor of the parishioner, and awarded her $205,000 in actual damages, $185,000 in punitive damages, and $45,000 in interest. The decision was appealed to the Oklahoma Supreme Court.

The elders and church argued that the First Amendment guaranty of religious freedom prevented them from being sued as a result of their exercise of ecclesiastical discipline. The court acknowledged that the United States Supreme Court has banned civil court review of "purely ecclesiastical" matters, but it concluded that the discipline of church members is not always immune from civil court review. It ruled that the First Amendment prevented the church and its elders from being sued for their actions prior to the parishioner's withdrawal (which, according to the court, occurred on September 24 when the parishioner sent her letter of withdrawal to the church), but that the church and elders could be sued for actions occurring after the parishioner's withdrawal. With regard to the parishioner's claim for "pre-withdrawal" damages, the court noted that "under the First Amendment people may freely consent to being spiritually governed by an established set of ecclesiastical tenets defined and carried out by those chosen to interpret and impose them." The court continued, "Under the First Amendment's free exercise of religion clause, parishioner had the right to consent as a participant in the practices and beliefs of the Church of Christ without fear of governmental interference. … Her willing submission to the Church of Christ's dogma, and the elders' reliance on that submission, collectively shielded the church's pre-withdrawal, religiously-motivated discipline from scrutiny through secular [courts]."

As authority for this proposition, the court quoted from a decision of the United States Supreme Court:

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 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.[332] Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872) (emphasis added).

The court concluded that "insofar as [the parishioner] seeks vindication for the actions taken by the elders before her membership withdrawal, her claims are to be dismissed."

Could the parishioner sue the elders and church for actions occurring after her withdrawal? The elders said no, pointing out that the Church of Christ contains no doctrinal provision for withdrawal from membership. Rather, a member remains a part of a congregation for life. Like those born into a family, they may leave but they can never really sever the familial bond. Accordingly, a court determination that the parishioner effectively withdrew from membership and thereby terminated the church's authority to discipline her would amount to "a constitutionally impermissible state usurpation of religious discipline." The elders also emphasized that the disciplinary procedure mandated by already had begun at the time of the parishioner's alleged withdrawal (the elders had confronted her on three occasions), and therefore the parishioner could not preempt the disciplinary process by an attempted withdrawal. The parishioner asserted that she had the authority to withdraw from membership in the church, and that her withdrawal terminated the church's authority to discipline her.

The court concluded that the parishioner's September 24, 1981 letter was an effective withdrawal from church membership, and it agreed with the parishioner that the elders and church could be sued for their actions following her withdrawal. It observed:

The First Amendment of the United States Constitution was designed to preserve freedom of worship by prohibiting the establishment or endorsement of any official religion. One of the fundamental purposes of the First Amendment is to protect the people's right to worship as they choose. Implicit in the right to choose freely one's own form of worship is the right of unhindered and unimpeded withdrawal from the chosen form of worship. … [The local church], by denying the parishioner's right to disassociate herself from a particular form of religious belief is threatening to curtail her freedom of worship according to her choice. Unless the parishioner waived the constitutional right to withdraw her initial consent to be bound by the Church of Christ discipline and its governing elders, her resignation was a constitutionally protected right.[333] 775 P.2d at 776-777.

The court concluded that the parishioner had not "waived" her constitutional right to withdraw from church membership. A waiver, observed the court, is a "voluntary and intentional relinquishment of a known right." The parishioner testified that she had never been informed by the church of its teaching that membership constitutes an insoluble bond of lifetime commitment, and accordingly she was incapable of knowingly and intentionally "waiving" such a right.

The court summarized its thinking as follows:

Disciplinary practices involving members of an ecclesiastical association … are among those hallowed First Amendment rights with which the government cannot interfere. … [Nevertheless] First Amendment protection does not extend to all religiously-motivated disciplinary practices in which ecclesiastical organizations might engage. By its very nature, ecclesiastical discipline involves both church and member. It is a means of religious expression as well as a means of ecclesiastically judging one who transgresses a church law which one has consented to obey. The right to express dissatisfaction with the disobedience of those who have promised to adhere to doctrinal precepts and to take ecclesiastically-mandated measures to bring wayward members back within the bounds of accepted behavior, are forms of religious expression and association which the First Amendment's free exercise clause was designed to protect and preserve.

And yet the constitutionally protected freedom to impose even the most deeply felt, spiritually-inspired disciplinary measure is forfeited when the object of "benevolent" concern is one who has terminated voluntary submission to another's supervision and command. While the First Amendment requires that citizens be tolerant of religious views different from and offensive to their own, it surely does not require that those like parishioner, who choose not to submit to the authority of a religious association, be tolerant of that group's attempts to govern them. Only those who "unite themselves" in a religious association impliedly consent to its authority over them and are bound "to submit to it."

Parishioner voluntarily joined the Church of Christ and by so doing consented to submit to its tenets. When she later removed herself from membership, petitioner withdrew her consent, depriving the church of the power actively to monitor her spiritual life through overt disciplinary acts. No real freedom to choose religion would exist in this land if under the shield of the First Amendment religious institutions could impose their will on the unwilling and claim immunity from secular [courts] for their tortious acts. [334] 775 P.2d at 779.

The court distinguished a federal appeals court decision cited by the elders which held that a dismissed member of the Jehovah's Witness church could not sue her former church for the emotional distress, defamation, and invasion of privacy that it allegedly caused by its practice of "shunning" her.[335] Paul v. Watchtower Bible & Tract Society, 819 F.2d 875 (9th Cir. 1987). Unlike the conduct of the Church of Christ elders, the practice of shunning the former Jehovah's Witness was "passive." The member abandoned her membership in the church, and the church simply instructed its members to avoid any contact with her. The court observed:

For purposes of First Amendment protection, religiously-motivated disciplinary measures that merely exclude a person from communion are vastly different from those which are designed to control and involve. A church is constitutionally free to exclude people without first obtaining their consent. But the First Amendment will not shield a church from civil liability for imposing its will, as manifested through a disciplinary scheme, upon an individual who has not consented to undergo ecclesiastical discipline.[336] 775 P.2d at 781.

The court rejected the elders' claim that their statements to the congregations were protected by a "conditional privilege." The court acknowledged that a statement is conditionally privileged if "the circumstances under which the information is published lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that there is information that another sharing the common interest is entitled to know." The court concluded that the elders' statements were not protected by a conditional privilege since the "parishioner was neither a present nor a prospective church member" at the time of the elders' public statements, and accordingly that the "congregation did not share the sort of 'common interest' in parishioner's behavior" that would render the elders' statements privileged.

The court acknowledged that "communicating unproven allegations of a present or prospective member's misconduct to the other members of a religious association is a privileged occasion because the members have a valid interest in and concern for the behavior of their fellow members and officers." However, it concluded that the elders' claim to a conditional privilege "as it pertains to their actions occurring after parishioner's withdrawal from membership, is without merit."

The court acknowledged that churches have a greater interest in receiving information concerning disciplined or dismissed clergy, and accordingly the "common interest privilege" is broader than in the context of lay member discipline. The court concluded that a congregation has "a common interest in being informed about the questionable conduct of one among them who expressed the desire to continue ministering to them or to one of the neighboring [Church of Christ] assemblies. Here, parishioners expressed no interest in continuing her association with [her former church] or with any other Church of Christ [congregation]." Accordingly, the church simply had no "common interest" in her post-withdrawal discipline that would make the elders' statements conditionally privileged.

What is the relevance of the Oklahoma Supreme Court's decision to local churches? Obviously, the court's decision is binding only upon churches in the state of Oklahoma. Nevertheless, the case represents one of the most extensive discussions of church discipline by any court, and accordingly it probably will be given special consideration (and no doubt be followed) by the courts of many other states. For this reason, the case merits serious study by church leaders in every state. With these factors in mind, consider the following:

1. Discipline of church members is constitutionally protected. The discipline of church members (i.e., persons who have not withdrawn from membership) is a constitutionally protected right of churches. If discipline of church members is a possibility in your church, then you should adopt a disciplinary procedure that is based upon and refers to scriptural references. The procedure should specify the grounds for discipline, and describe the process that will be conducted. Avoid references to loaded phrases such as "due process," which have no legal relevance in the context of church law and only create confusion. The Oklahoma court acknowledged that there might be some pre-withdrawal disciplinary actions which would be so extreme as to lose their constitutional protection. However, it concluded that the elders' conduct did not constitute such a case. Recall that the elders' pre-withdrawal actions were limited to three meetings with the parishioner and involved no public dissemination of her alleged misconduct.
2. No constitutional protection after a member resigns. Discipline of persons who have effectively withdrawn their church membership is not a constitutionally protected activity, and churches that engage in such conduct can be sued under existing theories of tort law. In the Oklahoma case, the parishioner sued the church (and its elders) for both invasion of privacy and intentional infliction of emotional distress. The parishioner asserted that the church invaded her privacy in two ways. First, the actions of the elders "intruded upon her seclusion." Second, the elders' notification of their own congregation (as well as four other local congregations) of the parishioner's misconduct amounted to an unreasonable public disclosure of private facts. Both of these assertions constitute well-recognized variations of the tort of invasion of privacy. The parishioner also claimed that the elders' conduct amounted to an intentional infliction of emotional distress (another well-recognized tort), since their actions were extreme and outrageous and of an intentional and reckless nature which caused her severe emotional distress and shock (particularly since the parishioner's minor children were present at the church service during which the elders publicized her misconduct).
3 . Church members have a constitutional right to resign. The court concluded that the constitutional right of a church member to withdraw from church membership is protected by the First Amendment guaranty of religious freedom unless a member has waived that right. An effective waiver requires the voluntary relinquishment of a known right. In other words, a member can waive the right to resign by a voluntary and intentional act, but not through inadvertence or ignorance. A church wishing to restrict the right of disciplined members to withdraw must obtain a voluntary and knowing waiver by present and prospective members of their constitutional right to withdraw. How can this be done? One approach would be for a church to adopt a provision in its bylaws preventing members from withdrawing if they are currently being disciplined by the church. Obviously, the disciplinary procedure must be carefully specified in the church bylaws so there is no doubt whether the disciplinary process has been initiated with respect to a member. Most courts have held that members are "on notice" of all of the provisions in the church bylaws, and consent to be bound by them when they become members. As a result, the act of becoming a member of a church with such a provision in its bylaws may well constitute an effective waiver of a member's right to withdraw (if the disciplinary process has begun). Such a conclusion is not free from doubt, however. To be as safe as possible, a church could explain to present and prospective members the provision in the bylaws limiting their right to withdraw, and explaining to them that by becoming members they will be waiving their right to withdraw from membership if they are under discipline by the church. The problem in the Oklahoma case was that the church attempted to discipline the parishioner following her withdrawal. According to the court's ruling, the church could have avoided liability by obtaining an effective waiver. Unfortunately, the court did not discuss what forms of waiver it would find acceptable.
4. Passive discipline. The Oklahoma court concluded that a church retains the right to engage in "passive" discipline of former members. It approved a federal appeals court decision rejecting the claim of a former Jehovah's Witness that her former church had defamed her, invaded her privacy, and caused her emotional distress by its practice of "shunning" former members. The court observed that the decision of the Jehovah's Witness church "to turn away from her was protected under the First Amendment as a passive exercise of religious freedom, the legitimacy of which was not grounded in her prior acquiescence."
5. Communications of matters of "common interest" to members. The court acknowledged that church members have a right to know about matters in which they have a "common interest," and that this right permits some disclosures to church members concerning the discipline or misconduct of current members. Statements by church leaders to church members concerning the discipline of current members are conditionally privileged—meaning that the disciplined member cannot successfully sue the church for making such disclosures unless the church acted maliciously (i.e., it either knew that the disclosures were false or made them with a reckless disregard as to their truthfulness). It must be emphasized that this privilege only protects disclosures made to church members about church members. Disclosures made to a congregation during a worship service in which non-members are present would not be protected. And, statements about former members are not protected (presumably, non-members would need to be removed from the sanctuary before statements regarding church discipline could be made). The court observed: "Communicating unproven allegations of a present or prospective member's misconduct to the other members of a religious association is a privileged occasion because the members have a valid interest in and concern for the behavior of their fellow members and officers."
Obviously, the safest course of action for a church board that has disciplined a member is to refrain from disclosing any information to the congregation. If the board decides that the congregation should be informed, then a general statement that the individual is "no longer a member" is the safest approach. If the board would like to share more details with the church, then it should do so at a congregational meeting or service only after all non-members have been removed. Members present should be instructed to retain the information presented in the strictest confidence. Churches following the disciplinary procedure outlined in Matthew 18 ultimately may wish to let the church membership make the final determination regarding the guilt or innocence of an accused member (and any penalty to be imposed). If so, the church must be careful to remove all non-members from such a meeting, and to apprise the membership of the confidentiality of the information that is disclosed. It would be appropriate for the congregation to adopt a resolution at such a meeting committing itself to maintaining all confidences shared during the meeting.
6. Discipline of clergy. Churches have greater protection in making statements about current or former clergy, since the congregation continues to have "a common interest in being informed about the questionable conduct of one among them who expresses the desire to continue ministering to them or to one of the neighboring assemblies." Accordingly, disciplined clergy may find it more difficult to sue their church or denomination.

On the whole, churches benefit from the Oklahoma Supreme Court's ruling, since the court recognized that:

  • churches have a constitutional right to discipline members;
  • statements made to church members about disciplined members are "conditionally privileged";
  • churches have broad authority to discipline clergy; and
  • churches have a constitutionally protected right to discipline a former member who has withdrawn from membership if the former member has effectively waived his or her right to withdraw from membership.
The court's ruling does not go as far as some other court decisions in recognizing a broad authority on the part of churches to discipline persons who have withdrawn from church membership. And, the court failed to adequately refute the elders' claim that the parishioner's right to withdraw was suspended when the elders commenced the church's disciplinary process (a year before the parishioner's withdrawal). Finally, the court acknowledged (on the basis of United States Supreme Court rulings) that "all who unite themselves to [a church] do so with an implied consent to [its] government, and are bound to submit to it." Yet, it greatly limited the effect of this language by permitting the parishioner to completely avoid the church's well-defined disciplinary process (with which she had been familiar) merely because she did not technically "waive" her right to withdraw. This aspect of the court's ruling is unfortunate—particularly since the court provided no guidance whatever to churches regarding the form and contents of an effective waiver.

3. DECISIONS RECOGNIZING A LEGAL REMEDY: OTHER CASES

Persons who believe that they have been improperly expelled from membership in a church have a number of potential remedies available to them.

First, they may be able to obtain judicial review of the expulsion if they reside in a jurisdiction that permits marginal civil court review of church membership determinations. If a court agrees to review the expulsion and finds that it was deficient on the basis of one of the grounds discussed in this section, it may declare the expulsion void and reinstate the expelled member.[337] Ragsdall v. Church of Christ, 55 N.W.2d 539 (Iowa 1952).

Second, wrongfully expelled members may be able to recover monetary damages. [338] Louison v. Fischman, 168 N.E.2d 340 (Mass. 1960).

Third, they may petition a court for an injunction prohibiting a church from interfering with their rights or privileges as members.[339] David v. Carter, 222 S.W.2d 900 (Tex. 1949).

Fourth, they may seek a declaratory judgment setting forth their rights.[340] Epperson v. Myers, 58 So.2d 150 (Fla. 1952).

Fifth, in some cases they may sue their church or certain of its members for defamation.

Defamation generally is defined to include the following elements: (1) a public statement, whether oral or in writing; (2) reference to another; (3) that is false; and (4) which injures the reputation of the other. Truth is generally held to be an absolute defense to a defamation action. Thus if the allegedly defamatory statements were true, an expelled member will not be able to sue for defamation even if his reputation has been injured.

Defamation actions are limited in another important way. Most jurisdictions recognize that statements made by a person in a reasonable manner and for a proper purpose to others having a common interest with him in the communication are "qualifiedly privileged" and immune from attack unless they are made with malice.[341] The qualified privilege is addressed more fully in section 4-02.03. Malice in this context refers to either a knowledge that the communication was false or a reckless disregard concerning its truth or falsity.

The common interest among church members about church matters is likely sufficient to create a qualified privilege for communications between members on subjects relating to the church's interests. To illustrate, where expelled church members had been publicly referred to by other members as "totally unworthy of the continued confidence, respect and fellowship of a great church," as willing to lie in order to harm their church, and as possessed of a vile spirit, a court concluded that the remarks were entitled to a qualified privilege. The court nevertheless considered the remarks defamatory because they had been made either recklessly or with a knowledge of their falsity.[342] Brewer v. Second Baptist Church, 197 P.2d 713 (Cal. 1948).

In another case, an expelled member alleged that at various times in meetings of his religious group other members had stated that he was a disgrace to his religion, that his conduct was scandalous, that he was guilty of evil conduct and was a man of low character, and that his conduct was so bad that it could not be described publicly. A court, in finding such statements malicious, stated the general rule as follows:

Members of such bodies may report on the qualifications of applicants, prefer charges against fellow members, offer testimony in support of the charges, and make proper publications of any disciplinary action that may be taken, without liability for any resultant defamation, so long as they act without malice. The rule relative to qualified privilege is always subject to the limitation, as stated, that in connection with such activities the parties must act without malice. When a matter which otherwise would be a qualifiedly privileged communication is published falsely, fraudulently, and with express malice and intent to injure the persons against whom it is directed, the communication loses its qualifiedly privileged character and the parties lay themselves liable to a suit for damages in an action for libel or slander.[343] Loeb v. Geronemus, 66 So.2d 241, 244 (Fla. 1953) (citations omitted). See also Joiner v. Weeks, 383 So.2d 101 (La. 1980), cert. denied, 385 So.2d 257 (La. 1980); Moyle v. Franz 46 N.Y.S.2d 667 (1944), aff'd, 47 N.Y.S.2d 484 (1944).
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