A lot of ink has been spilled over the years about how much the Free Exercise Clause should keep courts from addressing employment disputes between houses of worship and clergy. Because such employment disputes frequently hinge on matters implicating faith, courts are often loathe to become involved. Such concerns arise most obviously when a house of worship terminates clergy because of disagreements over theological issues.
But some courts have declined to entertain a suit even where a discharged member of the clergy sues the former employer for defamation arising from statements related to the employment dispute. The Virginia Supreme Court wrote in 2001 that “most courts that have considered the question whether the Free Exercise Clause divests a civil court of subject matter jurisdiction to consider a pastor’s defamation claims against a church and its officials have answered that question in the affirmative.” It continued:
plaintiff’s allegations of defamation against the individual defendants cannot be considered in isolation, separate and apart from the church’s decision to terminate his employment. * * * [I]f a civil court were to exercise jurisdiction [over] the plaintiff’s [lawsuit] under these circumstances, the court would be compelled to consider the church’s doctrine and beliefs because such matters would undoubtedly affect the plaintiff’s fitness to perform pastoral duties and whether the plaintiff had been prejudiced in his profession. Neither the Free Exercise nor [the] Constitution of Virginia permits a civil court to undertake such a role.
Cha v. Korean Presbyterian Church of Washington, 553 S.E.2d 511, 516-517 (Va. 2001), cert. denied, 535 U.S. 1035 (2002); see also, e.g., Thibodeau v. Am. Baptist Churches, 994 A.2d 212, 222 (Conn. App. 2010) (“The plaintiff’s defamation count * * * would require an impermissible inquiry into the defendant’s bases for its action and its ground for evaluating ministers.”); Heard v. Johnson, 810 A.2d 871, 883 (D.C. 2002) (under “most circumstances, defamation is one of those common law claims that is not compelling enough to overcome First Amendment protection surrounding a church’s choice of pastoral leader”).
Cooke v. Tubra, 10-559, petition filed October 22, involves a dispute between the International Church of the Foursquare Gospel and the former interim pastor of the Vernonia, Oregon, congregation of the church, Tim Tubra. (Yes, that Vernonia.) After a rocky start, the church fired Tubra after a dispute over the propriety of a $3,000 withdrawal he made from church funds. The church then read a letter to the congregation saying that “it is now evident that there has been, to some extent, a financial misappropriation by [the] former pastor,” and one church employee emailed another that Tubra had “demonstrated a willingness to lie.” Tubra sued the church for defamation, and a state court jury awarded him damages. The trial court granted the church’s motion for judgment notwithstanding the verdict on the grounds that the First Amendment “operated to deprive the court of jurisdiction over the defamation claim.”
The Oregon Court of Appeals reversed and remanded, holding that the First Amendment is not necessarily a bar “[i]f * * * the statements * * * do not concern the religious beliefs and practices of the religious organization, or are made for a nonreligious purpose.” Here, “the alleged defamatory statements—that the pastor had misappropriated money and had demonstrated a willingness to lie—would not ‘always and in every context’ be religious in nature.” Tubra v. Cooke, 225 P.2d 862, 873 (Ore. App. 2010). The Oregon Supreme Court summarily denied review. 225 P.2d 221 (Ore. 2010).
The case presents some interesting issues. The particular statements at issue are not overtly religious (although the letter in question does begin, “Greetings in the powerful and unchanging name of Jesus Christ”), but many courts, including the Cha and Heard courts, have explicitly said that does not matter, because they have concluded that the Free Exercise Clause prohibits them from becoming involved in disputes involving church discipline and statements made among church members. Because the last opinion in this case was from a state’s intermediate appellate court, this case may fly under many people’s radar. The brief in opposition is currently due Nov. 29.
For a short article on the case from the ABA Journal, check out this:
(A nonlawyer friend of mine is involved in the case, but I have no interest in it other than as a Supreme Court nerd.)
rpt says:
Very interesting case for me, as we spent some years in the Foursquare denomination and my USSC cert experience includes defeating cert petitions by the National Enquirer in a defamation case and a terminated minister in a clergy termination case where the allegations included wrongful termination and whistleblower claims. We lost a summary judgment in a California trial court and had it reversed by the Court of Appeal in an unpublished decision on a successful writ proceeding. This petition doesn’t seem to emphasize as much as it might that the defamation claim arises out of the employment relationship which the civil courts can’t review per the “ministerial exception” doctrine. I’m surprised the Oregon court let the judgment stand.
November 2, 2010, 4:16 pmPersonFromPorlock says:
I maintain that if the Free Exercise Clause pertains to religion generally, there’s no way to outlaw human sacrifice in the District of Columbia, so long as the celebrants are of a religion which practices it. For that reason, and because there’s nothing else for the “thereof” to refer back to, the “free exercise thereof” ought to be seen as the free exercise by the states of their right to operate ‘establishments of religion’ of their own. This complements the Establishment Clause, which protects those established churches from federal competition.
This is admittedly a minority(!) position, but not an illogical one. And it vastly simplifies application of the First Amendment in cases like this.
November 2, 2010, 4:20 pmADF Alliance Alert » Damaging words cost pastor his pulpit but land him big bucks says:
[...] over the church and Tubra’s defamation claim against it.” John Elwood comments at the Volokh Conspiracy on Cook v. [...]
November 2, 2010, 5:05 pmDavid Schwartz says:
So if I am a member of a church and agree to repair their roof for $15,000, they pay me, and I don’t fix the roof, can they sue me? I mean clearly this is a dispute between a church and one of its members. What if I argue that god told me not to fix the roof and the money was a gift from him to me?
I agree that the court can’t resolve a fundamentally religious disagreement. For example, if the church claimed they fired him because he was teaching invalid doctrine, that would be off limits. The same would hold if he had, say associated himself with a charity that the church felt conflicted with their religious values.
But this is a claim of misappropriation of funds, no different from the roof repair. If churches want to resort to civil courts when they are defrauded, they must submit to them when they defame.
November 3, 2010, 6:48 amWednesday round-up : SCOTUSblog says:
[...] the Volokh Conspiracy, John Elwood discusses a recently filed petition on the extent to which a court can address an [...]
November 3, 2010, 10:03 amSoronel Haetir says:
I would have thought that the ministerial exemption would be an affirmative defense (in law rather than fact, so it would be for the judge(s) to decide) that the church would have to put forward. And like any other affirmative defense it might fail depending on the circumstances. I see this case, at least as described, as being such a case where the exception should fail. However if the church can prove even that there was a good reason to believe that funds had actually been taken or that the plaintiff had shaded his statements in any self-serving manner I should also expect his defamation claim to fail. That would be a matter for a jury though and not the judge.
November 3, 2010, 12:43 pmWednesday round-up | theConstitutional.org says:
[...] the Volokh Conspiracy, John Elwood discusses a recently filed petition on the extent to which a court can address an [...]
November 3, 2010, 10:08 pm