Clergy Discipline – What May Be Disclosed to Others?

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Most issues within churches and other religious institutions typically stay within such organizations as their own business.  But what happens when a pastor or other spiritual leader engages in misconduct or otherwise demonstrates unfitness for such religious leadership?  May the religious organization’s governing leaders share these shortcomings with others? 

When a worshipping body becomes aware of problems, its governing leaders generally handle such issues in-house.  Under certain limited circumstances, however, disclosure of disciplinary actions to others may be proper.  First, if the spiritual leader’s misconduct is criminal in nature (e.g., sexual abuse), such information should not be kept secret but instead should be reported to the appropriate authorities.  Second, clergy problems are sometimes disclosed beyond an individual church or other local body, such as to denominational leadership that may consider disciplinary sanctions or to other churches that may be interested in hiring the clergyperson.  Religious institutions should be cautious, however, because speaking to others about clergy misconduct may give rise to potential liability for both the organization and its governing leaders.  Civil wrongs (in legal parlance, “torts”) may be actionable such as defamation, invasion of privacy, and intentional infliction of emotional distress.  In such cases the issues can become quite complex.

Church No. 1 and Church No. 2 – Religious Leadership Matters?

Consider the following true example of disclosures that resulted in liability for the church.  Church No. 1 ordained a member as its minister.  He later resigned. Eight years after his departure from Church No. 1, its governing leaders sent a letter to the minister, requesting that he respond to “disturbing reports” they received from a third party about the minister's conduct.  Church No. 1 threatened to rescind the minister’s original ordination if he did not respond to the allegations.  In response, the minister explained that Church No. 2 had investigated the allegations and determined them to be false.  Additionally the minister asserted that Church No. 1 no longer had authority over him, because he had resigned long ago.  Church No. 1 then wrote the minister, informing him of his ordination revocation, asking him to refrain from pastoral designations, and instructing him to inform Church No. 2 about such actions by Church No. 1.  Church No. 1 also sent this letter to three leaders of Church No. 2.  The minister sued Church No. 1, its senior pastor, and chairman of the elder board for claims of conspiracy and false light invasion of privacy.  See Duncan v. Peterson, 359 Ill. App. 3d 1034, 835 N.E.2d 411 (2005). 

The case ostensibly involved only spiritual, non-legal matters, but a court was willing to consider the case – and even grant the minister relief.  Why?  And what can other governing leaders of religious institutions learn from this disturbing case?

Ecclesiastical Abstention Vs. Neutral Principles

As a threshold issue, the Illinois court considered whether the suit’s subject matter precluded judicial intervention on grounds of “ecclesiastical abstention.” This is a judicial doctrine under which courts are prohibited from involvement with a religious institution’s worship, theological traditions, or internal religious governance (e.g., interpretation of canonical texts or hierarchical denominational decisions).  The basis for such doctrine lies within the First and Fourteenth Amendments’ protection for religious institutions, as recognized by the U.S. Supreme Court’s decision in Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976), in which the Court refused to disturb an ecclesiastical tribunal’s final decision about one of its spiritual leaders.  Under this constitutionally-grounded doctrine, religious institutions thus may freely determine their own matters of doctrine and worship.

But the ecclesiastical abstention doctrine is not an absolute bar from judicial intervention in church matters.  Rather, where such disputes involve matters of corporate governance, or the conduct of worshipping entities in view of obligations to third parties, courts frequently use “neutral principles” of law to determine the validity of such actions.  Accordingly, while courts may not interpret a worshipping group’s sacred texts, courts do have broad powers to ensure that such worshipping bodies play by the rules.  More specifically, courts may require worshipping nonprofits to follow their own properly adopted bylaws, policies, and other governing documents, as required under applicable state nonprofit law.  Further, courts can hold worshipping groups liable for not properly withholding employment taxes or for other tax-related noncompliance entirely on “neutral principles” grounds.And as illustrated in the case below, worshipping groups may be held liable for breaches of legal duties.  In other words, except with respect to religious doctrinal matters and strictly “in-house” leadership matters (ecclesiastical abstention), a court may get involved and decide rights and liabilities of religious institutions (neutral principles).

Spiritual Leadership and Sanctions: Must a Court Keep Out?

How do these legal principles apply to Church No. 1 and its former minister?  Church No. 1’s decisions to revoke the minister’s ordination and send the letter were consistent with its sincerely held beliefs.  Indeed, like all religious institutions, Church No. 1 had a right to spiritually oversee the actions of individuals it had ordained.  Church No. 1’s senior pastor further argued that, since Church No. 1 had ordained the minister, he was obligated to abide by its standards for as long as he was ordained.  Such obligations were assumed from Church No. 1’s interpretation of Biblical leadership standards, however, rather than reflected in any written contract or elsewhere.  Accordingly, Church No. 1 argued that the ecclesiastical abstention doctrine applied to this essentially theological dispute.

The court disagreed.  Instead, the court concluded it would not “need to inquire into or interpret religious matters to decide whether … the letter was false and misleading and was a tortious invasion of privacy.”  Significantly, the court distinguished between Church No. 1’s right to revoke its ordination and the way in which its leaders revoked the ordination.  Whether Church No. 1 had the right to revoke may have been an issue precluded under the ecclesiastical abstention doctrine.  But whether Church No. 1 was liable for invasion of privacy in the way it revoked the ordination was fair game.  More specifically, the court ruled that it could consider whether Church No. 1’s leaders had conspired to harm the minister’s reputation and whether its letter put the minister in a false light. 

Lessons Learned

Religious institutions can overestimate their First Amendment protections under the ecclesiastical abstention doctrine.  To be sure, ordained clergy are always subject to the governing ecclesiastical bodies that ordained them – at least insofar as such rules so provide.  When such clergy commit acts inconsistent with the religious tradition’s teachings and beliefs, these governing entities may impose sanctions including revocation of ordination or licensure credentials.  Imposition of sanctions is often regarded as a spiritual duty or matter of obedience, even an act of worship. But such sanctions also may conflict with certain common law prohibitions, as Church No. 1 learned by being held liable for tortious invasion of privacy. 

In holding ordained clergy accountable, what should responsible governing leaders of churches and other religious institutions do? The following specific guidelines should help religious institutions to keep such matters within appropriate ecclesiastical boundaries and away from judicial scrutiny (and therefore potential legal liability).

(1)  Describe the religious institution’s disciplinary procedures in detail, and in writing.

(2)  Expressly tie such disciplinary procedures to the group’s sacred texts, theological works, or scriptures, such as with citations.

(3)  Require candidates’ written agreement to submit to such written disciplinary procedures as a condition of ordination.

(4)  In the event of disciplinary action, meticulously follow the organization’s own written procedures.

(5)  Release information related to a clergy person’s censure only to specific individuals or groups as identified in the disciplinary procedures document.  For example, affiliated churches may list other affiliate churches as proper recipients of information.  A church’s governing leaders should be extremely careful – and follow appropriate confidentiality boundaries – in sharing such sensitive information with others, including its own parishioners. 

To be sure, the sincerely held religious convictions of a worshipping group may sometimes directly conflict with certain duties required of the organization under the law.  A worshipping body may feel conscience-bound to inform others of its disciplinary actions.  In such cases, the organization should, in consultation with qualified legal counsel, tread very carefully to ensure that the organization understands any legal risks of disclosure and handles such matter with appropriate confidentiality.  The worshipping group should seek to honor its spiritual convictions in such a manner as to minimize the organization’s legal exposure.