Interesting Free Exercise Clause Petition

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.)