The Discipline of Nonmembers

A Michigan court issues an important ruling-Smith v. Calvary Christian Church, 1998 WL 842259 (Mich. App. 1998) [Invasion of Privacy, Church Members,The Establishment Clause]

Church Law and Tax1999-03-01

The Discipline of Nonmembers

A Michigan court issues an important ruling-Smith v. Calvary Christian Church, 1998WL842259(Mich. App. 1998) [Invasion of Privacy, Church Members, The Establishment Clause]

Article summary. A Michigan court addressed an important issue in a recent ruling-the authority of a church to discipline its members. The court concluded that the first amendment guaranty of religious freedom provides churches with substantial protection when disciplining members. 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 Michigan court, like others before it, 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.

Ministers often learn of personal struggles and failings in the course of counseling. In some cases, such disclosures may reveal conduct that violates the church’s teachings. In such cases ministers may feel that the person be disciplined. If so, they may feel compelled to share the confidential information with others, including the church board or the congregation itself. But any disclosure of confidential information, without consent, creates potential legal problems. Persons who share confidential information may feel betrayed, even outraged, by a public disclosure of the information shared in confidence with their minister. This may lead to a lawsuit seeking damages on the basis of breaching the duty of confidentiality, emotional distress, invasion of privacy, and possibly breach of contract. The church will insist that it has a constitutionally protected right to discipline its members. Obviously, these cases present the civil courts with a very difficult task. A Michigan court addressed such a lawsuit in a recent case. The court concluded that the liability of a church for a pastor’s public disclosures of information received in confidence will depend on whether or not the person who shared the information was a member of the church. This feature article will review the facts of the case, summarize the court’s ruling, and evaluate the relevance of the case to church leaders.


Can a pastor and church be liable for communicating information to the congregation that was shared with the pastor in confidence? This important question was addressed by a Michigan court in a recent ruling. A church member (the “plaintiff”) confessed to his pastor that he had previously committed adultery with prostitutes. The pastor decided to communicate this information to the entire congregation, including the member’s wife, family, and friends. The pastor insisted that he did not believe in confidential communications and that church doctrine required exposing sins to the congregation. The member claimed that the pastor had been motivated not by religious doctrine but by ill will and the intent to humiliate him and create dissension within his family.

The disgraced member sued his pastor and church, alleging that they breached their “duty of confidentiality” to him by disclosing personal, sensitive information to the church congregation. Moreover, the victim claimed that this intentional breach of confidentiality caused him to suffer psychological distress requiring treatment, as well as physical and mental pain. The trial court dismissed the case on the following grounds: (1) the clergy-penitent privilege is a “rule of evidence that did not create a cause of action for disclosure of private or privileged communications”; (2) the member and his pastor and church had not entered into “an express agreement regarding the confidentiality of the confessions” and therefore there had been no “breach of contract”; and (3) “whether the church required that clergy keep confidential a member’s personal disclosures was a matter of religious doctrine that the court could not determine according to civil law principles.” The member appealed.

The court’s ruling

The First Amendment

The appeals court began its opinion by observing:

Absent conduct that negatively impacts on the public interest in peace, safety and order, both federal and state courts are severely restricted by the [first amendment] in resolving disputes between a church and its members. Indeed, jurisdiction over these matters is limited to determining property rights that can be resolved by the application of civil law. When the court faces issues for their resolution requiring the application of religious doctrine or ecclesiastical polity, the court ceases to have jurisdiction. The United States Supreme Court has defined religious doctrine as ritual, liturgy of worship, and tenets of faith. Jones v. Wolf, 443 U.S. 595 (1979) .…

Here, the manner in which [the pastor and church] decide to discipline the church’s members and the religious doctrine that underlies the discipline are matters of ecclesiastical polity. In his affidavit [the pastor] stated that plaintiff’s discipline was consistent with … the church’s bylaws, entitled “Discipline,” which state that members willfully absent from services for an extended period of time or who are “under charges” are temporarily suspended from active voting membership pending investigation of the case. It also states that “[u]nscriptural conduct or doctrinal departure from the tenets of faith held by this assembly shall be considered sufficient grounds upon which any person may be disqualified as a member,” citing several biblical passages underlying these bylaws including Matthew 18:13-17; this biblical passage specifically states that the congregation should be told of the member’s sins if the sinner refuses to repent.

Despite the civil tort language that plaintiff applies to defendants’ actions, we cannot say that the facts in this case either permit or require judicial intervention into defendants’ decision to discipline its members because this exercise will necessarily involve interpreting religious doctrine.

The court concluded that the pastor’s statements to the congregation did not constitute a threat to public safety, peace, or order justifying state interference. It concluded that “disciplinary practices involving members of an ecclesiastical association, which do not pose a substantial threat to public safety, peace or order, are unquestionably among those hallowed first amendment rights with which the government cannot interfere.”

The effect of a member’s withdrawal on a church’s right to discipline-a review of three leading cases

The plaintiff insisted that the civil courts could resolve his claims since he resigned his church membership before the pastor shared the confidential information with the congregation. He insisted that he was not a church member on the date in question and that once he resigned his membership the pastor and church could not claim that the disclosure constituted church-imposed discipline against him. The court conceded that courts in a few other states have reached this conclusion, but it declined to do so because there was “conflicting evidence in the record regarding whether plaintiff was a member of church on that fateful day.” The court observed that courts in other states that have addressed the question of whether a church can discipline individuals without fear of judicial intervention “focus on whether the complaining individual was a member at the time of the disciplinary action.” Where the disciplined individual is a member of the church at the time of the church’s allegedly improper actions, and the person’s membership has not yet been severed, the church has authority to prescribe and follow disciplinary ordinances without fear of interference by the state.

The court referred extensively to two landmark decisions by the Oklahoma Supreme Court, and a Missouri court ruling.

(1) Guinn v. Church of Christ, 775 P.2d 766 (Okla. 1989)

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 Matthew 18:13-17. 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 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 24, 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 supreme court 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 …. [H]er 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. Watson v. Jones, 80 U.S. 879 (1972).

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

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 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.”

(2) Hadnot v. Shaw, 826 P.2d 978 (Okla. 1992 )

In 1992, the Oklahoma Supreme Court rendered a second landmark ruling on the discipline of church members. A church convened a disciplinary hearing to determine the membership status of two sisters accused of fornication. Neither sister attended, and neither sister withdrew her membership in the church. Following the hearing, both sisters received letters from the church informing them that their membership had been terminated. The sisters sued the church and its leaders, claiming that the church’s actions in delivering the termination letters and disclosing their contents “to the public” constituted defamation, intentional infliction of emotional distress, and invasion of privacy (public disclosure of private facts). A trial court dismissed the lawsuit, and the sisters appealed directly to the state supreme court, which upheld the dismissal of the case. The court began its opinion by rejecting the sisters’ claim that the contents of the termination letters had been disclosed improperly to the public. This allegation was based entirely on a conversation between a church board member and another member of the church. The member asked the board member why the board was “going after” the sisters, and the board member replied that it was on account of “fornication.” The court concluded that this comment did not constitute a disclosure of the contents of the letters “to the public,” and accordingly there had been no defamation of invasion of privacy. In rejecting the sisters’ allegation of emotional distress, the court noted that the evidence “does not suggest that the lay leader’s conduct was so extreme and outrageous as to justify submission of the claim to the jury.” The court then addressed the sisters’ claim that the manner in which the church notified them of the results of the disciplinary proceeding was inappropriate. In rejecting this claim, the court observed: “The church court had proper ecclesiastical cognizance when the letters were delivered. The [sisters] had not withdrawn their membership at the time they received notice of their expulsion. Under the first amendment, the procedural norms which govern the exercise of ecclesiastical cognizance are not subject to a secular court’s scrutiny. The [trial] court was hence without any authority to assess the propriety of the notice given.” The court then proceeded to announce an absolute constitutional protection for the membership determinations of religious organizations (assuming that the disciplined member has not effectively withdrawn his or her membership):

[The relationship between a church and its members] may be severed freely by a member’s positive act at any time. Until it is so terminated, the church has authority to prescribe and follow disciplinary ordinances without fear of interference by the state. The first amendment will protect and shield the religious body from liability for the activities carried on pursuant to the exercise of church discipline. Within the context of church discipline, churches enjoy an absolute privilege from scrutiny by the secular authority.

This absolute privilege also extends to the implementation of the decision of the church regarding the discipline of a member, even though the implementation occurs after the member has been dismissed. However, the absolute privilege only applies to disciplinary actions taken by the church before a member withdraws from membership. The court explained the effect of a member’s withdrawal from membership as follows:

At the point when the church-member relationship is severed through an affirmative act of either a parishioner’s withdrawal or excommunication by the ecclesiastical body, a different situation arises. In the event of withdrawal or of post-excommunication activity … the absolute privilege from tort liability no longer attaches.

However, the court cautioned that “until an affirmative notification of membership withdrawal is received the church need not reassess the course of its legitimate ecclesiastical interest.”

(3) Hester v. Barnett, 723 S.W.2d 544 (Mo. App. 1987)

A minister visited a family in their home and invited them to trust and confide in him and assured them that any communication with him as minister would be kept in strictest confidence and not be divulged to anyone outside the family. The husband and wife then confided in the minister that their three children had severe disciplinary and behavioral problems. The minister offered to counsel with the family. Despite his assurances of confidentiality, the minister divulged to deacons of the church and members of the community the confidential communications from the family, without their consent. The family claimed that the minister falsely informed others that they had abused their children, and that he instructed the children to lie to others about parental abuse.

The family sued the minister, claiming that he had defamed them from the pulpit and in letters, church bulletins and publications, by accusing the father of stealing, arson, cheating, and the physical and emotional abuse of his children. The family also claimed that the minister falsely reported the abuse to the child abuse hotline. The pastor insisted that the first amendment clothed him with an “absolute privilege” in the performance of his duties that prevented him from being used for defamation. A state appeals court rejected the pastor’s defense, and concluded that he could be sued for defamation-assuming that the family were not members of his church:

Our decision rests on the assumption that the [family] were not members of the church served by [the pastor]. The petition alleges only that [the pastor] presented himself to them as the minister of the [church] and invited [them] to confide in him. They responded with the confidences about the problems with the children. There is no intimation in the petition or answer that the [family] were members of the [church], or that they subjected themselves to the doctrine, religious practices or discipline of the church or its congregation. Among the defamations [alleged in the lawsuit] against the pastor were statements made in the course of sermons delivered from the pulpit. The [first amendment guaranty of religious freedom] forbids a court from any evaluation of the “correctness” of the content of religious sermons as expressions of belief or religious practice. The stricture of the free exercise clause is against “any governmental regulation of religious beliefs as such.” It is competent, therefore, for a court to inquire whether the sermon declarations that the [family] stole, committed arson and abused their children were expressions of actual creed and practice, held and exercised in good faith, or were merely the religious occasion for the wholly secular purpose of intentional defamation and injury to reputation of persons not even communicants of the church.

It may be that the statements from the pulpit, and the several others asserted against [the pastor] as defamations, were a form of chastening usual as to wayward members and conformable to the liturgy, discipline and ecclesiastical policy of the church and congregation. If so, and if the [family] were members of that religious body, they presumptively consented to religiously motivated discipline practiced in good faith …. A person who joins a church covenants expressly or impliedly that in consideration of the benefits which result from such a union he will submit to its control and be governed by its laws, usages and customs whether they are of an ecclesiastical or temporal character to which laws, usages, and customs he assents as to so many stipulations of a contract. The consent to submit to the discipline of the church, sect, or congregation is one of contract, therefore, between the member and the religious body. The discipline the religious body may impose, accordingly, must be within the terms of the consent. Damage incurred within the terms of consent is a nontortious consequence. It is a fundamental principle of the common law that to one who is willing no wrong is done.

The statements from the pulpit, and the others, moreover-if as to members and if as expressions of the religious practice of the church or congregation-are privileged as communications enjoined by duty [upon the pastor] to persons [church members] with a corresponding interest or duty. The privilege, however, is qualified, and is lost if the plaintiffs prove the defendant acted with the intention to injure the plaintiffs in reputation, feelings or profession. The use of the pulpit not as the pretext for the practice of religion, but as the occasion for intentional defamation, therefore, is neither justified by privilege nor protected by the free exercise clause.

In summary, if the family were members of the pastor’s church and the statements the pastor made from the pulpit were not only a form of chastening usual for wayward members but also consistent with the church’s liturgy, discipline, and ecclesiastical policy, then the family had no legal claim against either their pastor or church because they presumably consented to religious discipline.

The effect of a member’s withdrawal on a church’s right to discipline-the court’s conclusion

Having reviewed these three cases, the Michigan court turned to the facts of the present case, and concluded that it could not determine if the plaintiff had been a member of the church at the time of the pastor’s disclosures to the congregation. The evidence simply was not conclusive. However, the court left no doubt that this distinction was critical to the outcome of the case. If the plaintiff was a member of church on the date of the pastor’s disclosures to the congregation, then the court insisted that it was prevented by the first amendment guaranty of religious freedom from resolving the lawsuit. On the other hand, if the plaintiff was not a member on the date of the pastor’s disclosures, then “a closer look at plaintiff’s intentional tort claims is justified because once he removed himself from membership and withdrew his consent to obey church disciplinary policies [the pastor and church] lost their power to actively monitor plaintiff’s spiritual life or impose overt disciplinary actions on him.”

Potential Theories of Liability

The court sent the case back to the trial court to determine whether or not the plaintiff was a member of the church on the date of the pastor’s disclosures. If the plaintiff was not a member on that date, then the court concluded that the plaintiff was entitled to recover damages on the basis of intentional infliction of emotional distress and invasion of privacy.

(1) Intentional Infliction of Emotional Distress

The court noted that for the plaintiff to recover damages on the basis of intentional infliction of emotional distress, he had to prove (1) extreme and outrageous conduct, (2) performed intentionally or recklessly, (3) that caused severe emotional distress. The court added that “liability for such a claim has been found only where the conduct complained of has been so outrageous in character, and 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.”

(2) Invasion of Privacy

The court noted that invasion of privacy may consist of a number of different offenses, including public disclosure of embarrassing private facts. In order for the plaintiff to prove this kind of invasion of privacy, he would have to establish (1) the disclosure of information, (2) that is highly offensive to a reasonable person, and (3) that is of no legitimate concern to the public. The court concluded that “a jury must determine whether a public disclosure involves embarrassing private facts.”

The court concluded:

[W]e believe that plaintiff has pleaded that [the pastor] disclosed to the congregation plaintiff’s previous contacts with prostitutes, that this information was of no legitimate concern to the public and was conveyed to the congregation with the intent to embarrass plaintiff and cause him severe emotional distress. Whether [the pastor’s] conduct was sufficiently outrageous or extreme is a question best left to the jury. Also, whether plaintiff’s previous disclosure of these facts to his wife impacts his ability to recover under either intentional tort is not a question for this court. We believe, however, that if the trial court determines that plaintiff was not a member of defendant church on [the date of the pastor’s disclosures] then plaintiff’s intentional tort claims should survive summary disposition.

The court affirmed the trial court’s dismissal of the plaintiff’s claims alleging breach of contract and a breach of a duty of confidentiality.

Relevance of the case to church leaders

What is the significance of this case to other churches? A decision by a Michigan state appeals court has limited effect. It is not binding in any other state, and is subject to reversal by the Michigan Supreme Court. Nevertheless, the case represents one of the few extended discussions of church discipline and the relevance of membership status. As a result, it may be given special consideration by other courts. For these reasons the case merits serious study by church leaders in every state. With these factors in mind, consider the following:

1. The 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. The court concluded that “disciplinary practices involving members of an ecclesiastical association, which do not pose a substantial threat to public safety, peace or order, are unquestionably among those hallowed first amendment rights with which the government cannot interfere.”

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.

2. No constitutional protection after a member resigns. Discipline of persons who have effectively withdrawn their church membership, or who were never members, is not a constitutionally protected activity, and churches that engage in such conduct can be sued under existing theories of tort law. The court in the Michigan case concluded that the church and pastor could be sued for emotional distress and invasion of privacy-if the trial court later determined that the plaintiff was not a member of the church on the day of the pastor’s disclosures.

3. No liability for breaching the “duty of confidentiality.” The court rejected the plaintiff’s argument that the pastor’s disclosures to the congregation amounted to a breach of the “duty of confidentiality.” The plaintiff insisted that the clergy-penitent privilege imposed upon clergy a “duty of confidentiality,” and that clergy who disclose confidences without permission may be sued for breaching this duty. The court disagreed, noting that the clergy-penitent privilege is a “rule of evidence that did not create a cause of action for disclosure of private or privileged communications.”

A few courts have found clergy liable for breaching a “duty of confidentiality.” But this case suggests that such a duty cannot be based on the clergy-penitent privilege. The effect of such a conclusion will be to make it more difficult to prove a duty of confidentiality. This case will be a useful precedent to clergy who are threatened with litigation over a disclosure of confidential information, to the extent that an alleged duty of confidentiality is based on the clergy-penitent privilege.

4. Breach of contract. The court rejected the plaintiff’s claim that he and his pastor and church had entered into “an express agreement regarding the confidentiality of the confessions” that was breached by the pastor’s public disclosures. The court concluded that no such agreement existed. Many churches have created “agreements” for persons to sign as a condition of receiving counseling services from a pastor or other church counselor. If your church has done so, you should carefully review your document for any assurances regarding confidentiality.

Example. A church requires persons to sign a document as a condition of counseling with the pastor. The document states that the counseling services provided by the church are religious in nature, rather than psychological; that statements shared in confidence with the pastor are protected by the clergy-penitent privilege; that statements shared in confidence with the pastor will be treated as confidential by the pastor, unless disclosure is legally mandated by the state child abuse reporting law. If the pastor discloses confidential information shared with him by a counselee, he (and the church) may be sued for breach of contract. Such a claim will be less likely to succeed, however, if the counselee was a member of the church at the time of the disclosure.

5. The importance of defining membership.The court in this case was unable to determine whether or not the plaintiff was a member of his church. Yet, this status was absolutely critical, since the ultimate outcome of the case depends entirely on this one issue. Unfortunately, the definition of “members” is ambiguous in many churches. For example, many churches have bylaws that limit the definition of members to those persons who regularly attend services and contribute to the support of the church. Such provisions are inherently ambiguous, and create uncertainty as to the definition of a “member”. Another example would be a church bylaw provision that limits membership to persons whose lives are consistent with the church’s moral and religious teachings. These provisions are worded in various ways, but the result is the same-the definition of “member” may be uncertain.

Church membership is an important status. Not only does it provide the church with substantial protection in disciplinary cases, but in most cases it also defines those persons who can vote at church membership meetings. It is a term that should be defined with precision.

Tip. Review the definition of “member” in your bylaws or other organizational documents. Is the definition ambiguous? If so, consider amending it.

6. Members have a right to resign. The Guinn case, referred to by the Michigan court, concluded that the 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 under discipline 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). The problem in the Guinn 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.

7. Communication of matters of “common interest” to members. While the Michigan court did not address the issue, other courts have ruled 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. These courts generally conclude that 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).

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 decides, for whatever reason, that it would like to share more details with the church, then it can reduce the risk of doing so in either of the following ways:

l. Letter to members. The church can send a letter to all active voting members informing them of the basis for the member’s discipline. The envelope, as well as the letter itself, should be marked “privileged and confidential.” The letter should inform members that the information is being shared only with members, and that the recipient should not disclose the information with anyone. The letter should only communicate factually verifiable information. The disadvantage of this approach is that it provides information to all members, including those with no interest in learning the basis for the discipline.

l. Membership meeting. The church board can call a membership meeting at which the basis for the member’s discipline is disclosed. This approach has the added benefit of being specifically mentioned in the disciplinary procedure set forth in Matthew 18, and so it is probably more insulated from judicial review. It is essential that procedures be established to ensure that only members are present at such a meeting. For example, the audience could all be seated on one side of the sanctuary, and as the membership roll is read each member moves to the other side. Nonmembers are excluded from the meeting. In addition, ushers should be posted to prevent nonmembers from entering the sanctuary after the meeting has begun, and no tape recording should be permitted. It would be desirable, though not essential, for the members to adopt a resolution agreeing to maintain the confidentiality of the information that will be shared. Such a resolution would be useful only if 100 percent of all members present vote to adopt it.

l. Specific response. The church could simply inform the congregation that the member has been disciplined, and that members wanting to learn more about the basis for the discipline are directed to the senior pastor for more information. The pastor can then ensure that persons coming to him for more information are members. This approach will result in the disclosure of the sensitive information to the fewest number of persons.

Key point. A church should not disclose to its members any potentially damaging information about a disciplined member without first obtaining the counsel of a local attorney.

8. Arbitration. Churches wishing to reduce the risk of litigation by disciplined members (or any other members) should consider, in addition to the observations made above, the adoption of a binding arbitration policy. Such a policy, if adopted by the church membership at a congregational meeting as an amendment to the church’s bylaws, can force church members to resolve their disputes (with the church, pastor, board, or other members) within the church consistently with the pattern suggested by the apostle Paul in 1 Corinthians 6:1-8. While a discussion of arbitration policies is beyond the scope of this text, churches should recognize that arbitration is an increasingly popular means of resolving disputes in the secular world since it often avoids the excessive costs and delays associated with civil litigation and the uncertainty of jury verdicts. Of course, any arbitration policy should be reviewed by an attorney and the church’s liability insurer before being implemented. A legally effective and properly adopted arbitration policy can force disgruntled members to take their complaints to a panel of church representatives rather than create a costly and protracted spectacle in the secular courts. Such an approach, at a minimum, merits serious consideration by any church.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

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