Three new cases of employees against religious employers were decided this past week. There was small good news for the plaintiff in one case, and two more losses by “ministers.”
Good News
The Case
Some good news from the Supreme Judicial Court of Massachusetts, in an opinion by Justice Lowy in Doe v. Roman Cath. Bishop of Springfield, No. SJC-13219, 2022 WL 2976170 (Mass. July 28, 2022).
John Doe was sexually abused in a Catholic church in Massachusetts during the 1960s, when Doe was 9 to 11 years old. He was “brutally raped” by several church officials and priests, as well as by the Roman Catholic Bishop of Springfield Christopher J. Weldon. Yes, the bishop raped the child.
Doe’s memory of the abuse was triggered in 2013, and he brought news of the abuse to the current Catholic Church. Doe clearly told them at their hearing that Weldon had raped him. Period. Nonetheless, the church and its reports stated for a while that Doe had never said anything about Weldon. They even said Doe had acknowledged Weldon did him no harm.
An independent investigator eventually got the church and the current bishop of Springfield to acknowledge that Doe had honestly—and credibly—made charges against several church officials, including Bishop Weldon. Please do not forget. This is a case about the rape of a child.
Doe filed a lawsuit with fourteen counts. The first seven counts are about the abuse during the 1960s. Those complaints “alleged assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, conspiracy, negligent supervision, and breach of fiduciary duty.”
Counts 8-14 were about the post-2013 treatment of Doe by the church. Those sections “alleged negligence; negligent supervision; negligent infliction of emotional distress; intentional infliction of emotional distress; civil conspiracy; violation of G. L. c. 12, § 11I (addressing violations of constitutional rights); and defamation.”
The superior court denied the defendants’ motion to dismiss all the charges. Defendants then filed an appeal under the “doctrine of present execution,” which allows them “to appeal immediately from the denial of their motion to dismiss even though final judgment has not yet issued. The doctrine of present execution permits an appeal before final judgment when the appellate issue concerns a matter that is collateral to the underlying litigation and that cannot be addressed fully after final judgment.”
Defendants argued that church autonomy and charitable immunity allow their lawsuit to be dismissed now, and that the appeals court should rule in their favor now, using present execution.
The Result
Early good news in the case for now. The Supreme Judicial Court said the church autonomy argument could not be reviewed under the present execution document. Those issues about the church’s autonomy to keep church matters to itself could be reviewed on appeal once the trial was over. Therefore, counts 8-14, “alleged negligence; negligent supervision; negligent infliction of emotional distress; intentional infliction of emotional distress; civil conspiracy; violation of G. L. c. 12, § 11I (addressing violations of constitutional rights); and defamation,” are not dismissed, just as the superior court held. They go back to the superior court, where I hope the court will recognize that church autonomy does not allow the churches to play games with their honest and credible victims, hiding and lying about what is alleged instead of trying to give them justice.
Massachusetts abolished charitable immunity in 1971. But Doe’s abuse took place in the 1960s, so the old law of charitable immunity must apply. Justice Lowy clarified that charitable immunity could protect immunity from lawsuit, and not just immunity from liability, meaning that now is the time to rule on it. It protects defendants “from the burden of litigation and trial.” So the court can rule on it under the present execution doctrine. Charitable immunity is a doctrine based on the idea that charitable funds should be used for charitable purposes, not for paying court damages. Justice Lowy makes clear that sexual abuse of children is not charitable at all. “The abuse allegedly carried out by Weldon and other church leaders was not, and could not be, related in any way to a charitable mission.” That means the superior court judge was correct to allow the charges of sexual abuse of Doe to continue. Look at the seven counts again: “assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, conspiracy, negligent supervision, and breach of fiduciary duty.” Six of the seven counts can proceed, as they are abuse-related. Lowy singled out the negligent supervision charge, ruling a “negligent supervision claim is exactly the sort of allegation against which common-law charitable immunity was meant to protect.”It is too bad to lose one. But to keep six is excellent with its clear recognition that the sexual abuse of children is not protected by charitable immunity, even though churches have long thought it is. They use many legal doctrines to keep themselves from being sued.
The Case’s Future
At this stage, the plaintiff wins on all cases except negligent supervision. Now he has to win again in the superior court. No First Amendment rights should protect what the church has done. But, as the next two cases show, religions frequently win in court.
A Worship Pastor Loses
David Chris applied several times to be a pastor of worship and the arts at the Village Baptist Church. He argues that he was consistently rejected even though he qualified for the position. The church’s employees told him he was not qualified “because he is not a native English speaker.” He was told this repeatedly, as well as that he was not “familiar with American culture.” Chris says one employee commented negatively about his accent and national origin.
Chris filed a Title VII lawsuit alleging race and national origin discrimination. He made similar discrimination claims under Oregon law. Chris v. Kang, No. 3:21-CV-01266-HZ, 2022 WL 2967455 (D. Or. July 26, 2022).
The Oregon district court quickly dismissed his case because of the ministerial exception (“minex”). The ministerial exception is an affirmative defense. If the defendant proves the employee is a minister, the case is dismissed.
This was an easy conclusion for Judge Hernandez. “The qualifications included ‘a Pastor’s heart,’ actively ‘pastoring’ to the community, an understanding of the ‘philosophy of worship’ and the ‘ability to lead musical worship.’” Thus the job held “ecclesiastical significance” and was similar to the “paradigmatic application of the ministerial exception [] to the employment of an ordained minister.”
The judge of course cited the Supreme Court’s most recent minex case, Our Lady of Guadalupe School, which said “[w]hat matters, at bottom, is what an employee does.” What the pastor did was religious enough to qualify, so his Title VII claim was barred. Chris also lost his effort to win under Oregon law. The Court’s cases on the exception apply to state law claims.
Brief and simple, as most minex cases are. Ministers almost always lose, no matter what happened to them.
Another Schoolteacher Minister Loses
You just read it a few paragraphs ago: “[w]hat matters, at bottom, is what an employee does.” This is the Supreme Court’s Guadalupe case. The Seventh Circuit used it to give yet another defeat to a “minister.”
Judge Brennan of the Seventh Circuit Court of Appeals handed a loss to Lynn Starkey, a guidance counselor at Roncalli High School, a Catholic school in Indianapolis. Starkey started working at Roncalli in 1978.
Starkey works as a guidance counselor at the school and is not a practicing Catholic.
Roncalli had a morals clause in employee contracts, which required employees to refrain from any conduct or lifestyle at variance with the church’s moral and religious teachings. The contract would default if they did. An employee would be at odds with that contract if she cohabited with a person to whom she was not legally married. The 2017 contract added a “Teaching Ministry Contract.” In 2018, the contract said “an employee was in default if the employee were to engage in a relationship ‘contrary to a valid marriage as seen through the eyes of the Catholic Church,’ which defines marriage as between a man and a woman.” The Ministry Description also labeled guidance counselors “minister[s] of the faith,”; their position also involved “[f]acilitat[ing] [f]aith [f]ormation.”
Starkey was in a same-sex union. She was fired. She sued alleging Title VII discrimination, retaliation, and hostile work environment, and intentional interference with contractual relationship and intentional interference with employment relationship under Indiana tort law. The district court gave summary judgment to defendants; the Seventh Circuit affirmed her loss.
The description of all Starkey’s duties is lengthy. The court concludes, “In short, Starkey was entrusted with communicating the Catholic faith to children, supervising guidance counselors, and advising the principal on matters related to the school’s religious mission.” That made her a minister, so she loses.
Starkey argued that “she did not act in a ministerial capacity, even if she were entrusted to do so.” That argument, the court concluded, misunderstood the ministerial exception. “What an employee does involves what an employee is entrusted to do, not simply what acts an employee chooses to perform.” Failing to do your job does not allow you to sue your employer.
On the Indiana tort claims, the appeals court notes the “Supreme Court foresaw this [state law] issue in Hosanna-Tabor but declined to resolve it.” The circuit resolved it here to apply the exception to state law claims that implicate ecclesiastical matters. Courts must stay out of those issues, as the district and appeals courts did here.
Judge Easterbrook has two good sentences in the first paragraph of his concurrence, although I do not like the third because I think of the church’s contracts are often pretextual.
It is a stretch to call a high school guidance counsellor a minister. Even if the school expects counsellors to pray with students and discuss matters of faith with them, the job is predominantly secular. Designating the position as a minister by contract cannot be called pretextual, however, so I do not object to the majority’s conclusion.
Easterbrook would not decide the case under the ministerial exception. Instead, he thinks the exemption in §702(a) of the Civil Rights Act of 1964 allows the church’s conduct and that the church is exempt from lawsuit for its treatment of Starkey under this section. “I cannot imagine any plausible reading of ‘this subchapter’ that boils down to ‘churches can discriminate against persons of other faiths but cannot discriminate on account of sex.’”
Everyone does not agree with Easterbrook on this conclusion. He leaves us with the question to replace the ministerial exception with § 702(a). We will see what later cases do. Remember, the religious employee loses either way.
Funding
We wait to see the results of Doe’s case, while many employees lose discrimination suits because they are deemed to be ministers, especially under the Supreme Court’s Guadalupe case.
The Court’s new cases also give government funding to religious schools, which are not bound at all by the antidiscrimination laws. How can that be a good idea?
