Anyone considering the Bandstra v. Edouard petition might be concerned about how much a court can tell a church what it must do. For example, can a court second-guess a church’s hiring and supervision of its pastor? Can a court declare an elder’s moral assessment to be defamation? We know there is a “separation of church and state,” be we also grant that pastors can be required to obey the speed limit and churches are justly liable for on-premises injuries due to an obviously dangerous condition. Today we’ll take a look at how two courts have drawn the line between church freedom and church subjection.
In a 1997 case that arose from sexual activity between an adult woman and a priest who was giving her marriage counseling, the Maine Supreme Court considered a suit against the Catholic Church. The Plaintiff sued for negligent hiring and negligent supervision of the priest; the Court held that it couldn’t rule on either. Stating the general principle, the Court explained:
The First Amendment to the United States Constitution and Article I, § 3 of the Maine Constitution both guarantee citizens the right to freely exercise their chosen religion and forbid the establishment of religion by the government.When interpreting these guarantees, courts have generally held that states are forbidden from interfering in matters concerning religious doctrine or organization. By dictating neutrality on the part of the courts, our constitutions ensure that religious organizations remain free from “secular control or manipulation” and retain “power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”
Thus the relative freedom of churches is found in the First Amendment and based on the rationale that churches must be free to decide matters related to church government, faith, and doctrine. Accordingly a court’s analysis must include a determination of whether the court can decide the case without taking a position on church government, faith, or doctrine. When the Maine Supreme Court used this test, it found that making a determination of whether a church has been negligent in supervising its employee-priest is unconstitutional:
Thus, “[i]t would … be inappropriate and unconstitutional for this Court to determine after the fact that the ecclesiastical authorities negligently supervised or retained the defendant…. Any award of damages would have a chilling effect leading indirectly to state control over the future conduct of affairs of a religious denomination.” …imposing a secular duty of supervision on the church and enforcing that duty through civil liability would restrict its freedom to interact with its clergy in the manner deemed proper by ecclesiastical authorities and would not serve a societal interest sufficient to overcome the religious freedoms inhibited.
So the elders, church, and denomination in Bandstra v. Edouard would want an appeals court to follow the reasoning of the Maine Supreme Court. However, other courts have ruled on similar cases and are divided about which issues should be refused on a church autonomy principle. In Redwing v. Catholic Bishop (2012) the Tennessee Supreme Court first explains how a church is generally subject to the law:
Our analysis begins with the recognition that religious institutions exist and function in the context of the broader secular community. … The courts do not inhibit the free exercise of religion simply by opening their doors to a suit involving a religious organization. … the weight of authority recognizes that religious institutions are not above the law, … and that, like other societal institutions, they may be amenable to suits involving property rights, torts, and criminal conduct .… In civil cases, the ecclesiastical abstention doctrine is implicated only when the alleged improper conduct that gave rise to the lawsuit is “rooted in religious belief.”
So whereas the Maine Supreme Court drew the line of church autonomy at “matters of church government as well as those of faith and doctrine,” the Tennessee Supreme Court grants an apparently narrower autonomy: when the improper conduct alleged by plaintiffs is “rooted in religious belief.” Applying that test to negligent hiring, negligent retention, and negligent supervision claims, the Tennessee Court summarizes its decision:
Claims against a religious institution asserting the negligent hiring of a member of the clergy do not inevitably enmesh the courts in religious doctrine or dogma. Accordingly, the Ohio Supreme Court has held that “even the most liberal construction of the First Amendment will not protect a religious organization’s decision to hire someone who it knows is likely to commit criminal or tortious acts.”
…we have concluded that the ecclesiastical abstention doctrine does not necessarily immunize religious institutions from all claims for damages based on negligent hiring, supervision, or retention. Tennessee’s courts may address these claims, as long as they can do so using neutral principles of law and can refrain from resolving religious disputes and from relying on religious doctrine.
Procedure is generally important in the law, and this case is no exception. In its procedural context, the Tennessee court is simply deciding whether the issues can be tried at all. The holding, then, is that certain employment issues can be considered by a trial court. However, if the evidence then shows that the counts are religious disputes that require doctrinal answers, it would still be impermissible for a court to ultimately rule on those counts.
Applying these two cases to a Reformed church would seem to yield two different results. Under the Maine case it would be unconstiutional for a court to impose its secular understanding of such matters and churches would be unduly restricted in they way they interact with pastors. Under the Tennessee case, a court might find that there is no religious doctrine on supervision and that proper supervision can be determined without reference to religious doctrine, so there could be church liability.
But maybe a church can show that there is religious doctrine involved in supervision of a pastor. An attorney representing a church might set forth all the various activities associated with a minister from the scriptures and perhaps from secondary standards. The attorney might then point out that elders are unpaid “staff” with full-time jobs and families, who cannot possibly supervise the pastor like a traditional supervisor can supervise his employees. Thus, because there are religiously-dictated offices and duties that must be evaluated, a court would be delving in the area of doctrine when dictating how closely a pastor must be supervised, thereby violating a constitutional boundary.
As for the Bandstra v. Edouard defamation count against the Consistory and individual elders, the elders were clearly making moral judgments that are religiously derived. Such statements are in the realm of faith and doctrine (per the Maine test) and the court would be taking a religious position (per the Tennessee test) if it disagrees with the statements. Either way it would seem to be unconstitutional for a court to tell elders what they can and can’t say with regard to morals.