The Volokh Conspiracy - Contract Law and the First Amendment:

Generally speaking, contracts between private entities are enforceable even when they restrict one party's speech; the right to free speech, like most other rights, can be waived by contract. Likewise when a contract obligates a person to do something that the person later decides is against his religious beliefs. But there is one area where the First Amendment may preclude enforcement of contracts: when enforcing the contract requires religious decisionmaking, something that secular courts are not allowed to do. Friedlander v. Port Jewish Center, decided Monday, offers a good example (some paragraph breaks rearranged):

[Rabbi Ariel Friedlander] entered into a contract with the Defendant in May of 2005 to serve as the Temple's rabbi for a period of three years. The contract provided that the Plaintiff would perform "all the customary and usual duties of rabbis of Reform Congregations of the Union of Reform Judaism." In particular, the contract specified that the Plaintiff was expected to carry out various spiritual and administrative duties that included holiday and worship services; life cycle events; educational functions; pastoral functions; temple and other community functions; membership functions; and administrative functions.

The contract also provided that "the Rabbi shall have freedom of the pulpit," and indicated that the Temple could terminate the Plaintiff's contract only "for gross misconduct or willful neglect of duty." ... On or about July 5, 2006, Sandy Ehrlich, the Temple President, sent the Plaintiff an email cataloguing a list of grievances ... includ[ing], among other issues, the congregants' dissatisfaction with: (i) the Plaintiff's infrequent readings of the Torah; (ii) the quantity and variety of liturgical music selected for religious services; (iii) changes made to the Bar Mitzvah and Bat Mitzvah services; (iv) the Plaintiff's funeral service policies; (v) the Plaintiff's inability to work with religious instructors and the Cantor; (vi) the Plaintiff's neglect of her pastoral functions; (vii) the Temple's attrition rates under her leadership; and (viii) the number of hours the Plaintiff dedicated to administrative functions.... [O]n or about August 2, 2006, the Temple officially terminated her contract.

The Plaintiff argues that the Defendant's proffered reasons for her firing did not constitute just cause under the contract because she did not commit "gross misconduct" or "willful negligence". The Plaintiff also asserts a common law claim that the Defendant's breached the covenant of good faith and fair dealing by "fabricat[ing] and exaggerat[ing] situations they thought would constitute gross misconduct and willful neglect." ...

[T]he ministerial exception plainly does not create for religious institutions a charmed existence free from liability for "their torts and upon their valid contracts." ... The Plaintiff argues instead that this is a purely secular contract case that would not require the Court to entangle itself in religious doctrine.

The Court disagrees. "The Establishment Clause forbids 'excessive government entanglement with religion.'" The Second Circuit teaches that certain claims, regardless of their "emblemata," may "inexorably entangle [the courts] in doctrinal disputes." In this sense, the fact that the Plaintiff asserts causes of action sounding in violations of state contract law does not alter the Court's analysis.

Here, adjudicating the Plaintiff's claim would ... necessarily require the Court to review the Plaintiff's performance of her rabbinical duties. This is precisely the type of inquiry that the First Amendment prohibits. The Plaintiff's duties included, among other things, selecting readings from the Torah, and establishing policies for funeral services as well as Bar Mitzvah and Bat Mitzvah services. These are purely religious matters in which the Court may not interfere....

Note, incidentally, that courts will generally enforce the decisions of arbitral tribunals chosen by parties, even if those arbitrations interpreted religious law. Had the contract, for instance, provided for arbitration by a named religious tribunal, then that tribunal could have decided whether the rabbi's actions constituted "gross misconduct or willful neglect of duty," and any monetary judgment by the tribunal would have been enforceable by a secular court. (I suspect that an order that the congregation rehire the rabbi would have been enforceable, too, though that might conceivably be a tougher question.) But a secular court cannot itself decide whether a rabbi's decisions about how often to read the Torah, what sort of liturgical music to play, and so on constitute "gross misconduct or willful neglect."

	[Eugene Volokh, December 11, 2008 at 6:06am] Trackbacks Contract Law and the First Amendment: Generally speaking, contracts between private entities are enforceable even when they restrict one party's speech; the right to free speech, like most other rights, can be waived by contract. Likewise when a contract obligates a person to do something that the person later decides is against his religious beliefs. But there is one area where the First Amendment may preclude enforcement of contracts: when enforcing the contract requires religious decisionmaking, something that secular courts are not allowed to do. Friedlander v. Port Jewish Center, decided Monday, offers a good example (some paragraph breaks rearranged): [Rabbi Ariel Friedlander] entered into a contract with the Defendant in May of 2005 to serve as the Temple's rabbi for a period of three years. The contract provided that the Plaintiff would perform "all the customary and usual duties of rabbis of Reform Congregations of the Union of Reform Judaism." In particular, the contract specified that the Plaintiff was expected to carry out various spiritual and administrative duties that included holiday and worship services; life cycle events; educational functions; pastoral functions; temple and other community functions; membership functions; and administrative functions. The contract also provided that "the Rabbi shall have freedom of the pulpit," and indicated that the Temple could terminate the Plaintiff's contract only "for gross misconduct or willful neglect of duty." ... On or about July 5, 2006, Sandy Ehrlich, the Temple President, sent the Plaintiff an email cataloguing a list of grievances ... includ[ing], among other issues, the congregants' dissatisfaction with: (i) the Plaintiff's infrequent readings of the Torah; (ii) the quantity and variety of liturgical music selected for religious services; (iii) changes made to the Bar Mitzvah and Bat Mitzvah services; (iv) the Plaintiff's funeral service policies; (v) the Plaintiff's inability to work with religious instructors and the Cantor; (vi) the Plaintiff's neglect of her pastoral functions; (vii) the Temple's attrition rates under her leadership; and (viii) the number of hours the Plaintiff dedicated to administrative functions.... [O]n or about August 2, 2006, the Temple officially terminated her contract. The Plaintiff argues that the Defendant's proffered reasons for her firing did not constitute just cause under the contract because she did not commit "gross misconduct" or "willful negligence". The Plaintiff also asserts a common law claim that the Defendant's breached the covenant of good faith and fair dealing by "fabricat[ing] and exaggerat[ing] situations they thought would constitute gross misconduct and willful neglect." ... [T]he ministerial exception plainly does not create for religious institutions a charmed existence free from liability for "their torts and upon their valid contracts." ... The Plaintiff argues instead that this is a purely secular contract case that would not require the Court to entangle itself in religious doctrine. The Court disagrees. "The Establishment Clause forbids 'excessive government entanglement with religion.'" The Second Circuit teaches that certain claims, regardless of their "emblemata," may "inexorably entangle [the courts] in doctrinal disputes." In this sense, the fact that the Plaintiff asserts causes of action sounding in violations of state contract law does not alter the Court's analysis. Here, adjudicating the Plaintiff's claim would ... necessarily require the Court to review the Plaintiff's performance of her rabbinical duties. This is precisely the type of inquiry that the First Amendment prohibits. The Plaintiff's duties included, among other things, selecting readings from the Torah, and establishing policies for funeral services as well as Bar Mitzvah and Bat Mitzvah services. These are purely religious matters in which the Court may not interfere.... Note, incidentally, that courts will generally enforce the decisions of arbitral tribunals chosen by parties, even if those arbitrations interpreted religious law. Had the contract, for instance, provided for arbitration by a named religious tribunal, then that tribunal could have decided whether the rabbi's actions constituted "gross misconduct or willful neglect of duty," and any monetary judgment by the tribunal would have been enforceable by a secular court. (I suspect that an order that the congregation rehire the rabbi would have been enforceable, too, though that might conceivably be a tougher question.) But a secular court cannot itself decide whether a rabbi's decisions about how often to read the Torah, what sort of liturgical music to play, and so on constitute "gross misconduct or willful neglect."