Initiating the Pastor-Church Relationship
By Richard R. Hammar, J.D., LL.M., CPA
© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m32 m43
Churches may be classified in terms of polity or organization as either congregational or hierarchical. Understanding the difference between these two basic types of church structure is important, since many aspects of the pastor--church relationship turn on this distinction. The United States Supreme Court has defined a congregational church as “a religious congregation which, by the nature of its organization, is strictly independent of other ecclesiastical associations, and so far as church government is concerned, owes no fealty or obligation to any higher authority.”1 The Court has defined a hierarchical church as “a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control . . . over the whole membership of that general organization.”2 Some churches combine elements of both forms of polity.3 For example, one court has noted that “a church may be hierarchical in terms of internal administration and discipline, and yet congregational as far as control and use of its property is concerned.”4
In congregational churches, the minister ordinarily is selected by the congregation itself according to the procedures set forth in the church's constitution or bylaws. If neither the constitution nor bylaws addresses the subject, then the established practice of the church controls. Congregational churches usually select their ministers either by majority vote of the church's membership or by the decision of the church's deacons or trustees.5 Although either method is legally acceptable, most congregational or independent churches select their ministers by majority vote of the congregation's membership.
Hierarchical churches generally select their ministers according to the rules and regulations of the parent denomination. Some denominations give subordinate churches complete freedom in selecting ministers. Other denominations dictate who will be the minister of each affiliated church. Many denominations provide for the selection of ministers by the combined efforts of both the denomination and the subordinate church.
When a hierarchical body or official, pursuant to authority contained in the denomination's rules and regulations, selects a minister for a local congregation, the local congregation is without authority to affect or overrule that decision. In a leading case,6 a Methodist bishop acting pursuant to authority granted him by the Doctrines and Disciplines of the Methodist Church appointed a minister to serve a Methodist congregation in New Orleans, Louisiana. The congregation refused to recognize the bishop's appointment, and recognized instead a minister selected by congregational vote. In ruling in favor of the bishop, the court observed that the congregation was subject to the discipline of its denomination and accordingly had to recognize the appointment made by the bishop even though a majority of the congregation disapproved of it. In another case, a Pennsylvania state appeals court ruled that a Lutheran Synod had the legal authority to dismiss the minister of a local church despite the protest of a majority of the congregation. When the congregation refused to recognize the Synod's designated pastor, the Synod sought and received a court order forbidding the performance of any further pastoral functions at the church by the dismissed minister. The ousted minister refused to comply with the court order, which resulted in his being jailed for contempt of court.7
If a minister may be selected by vote of the congregation, it is important that the congregational vote be conducted pursuant to the church's constitution and bylaws. Failure to comply with the church constitution or bylaws in the selection of a minister can nullify the process. If an unincorporated church has no constitution or bylaws, or its constitution and bylaws do not deal with elections, then the established practice of the church should be observed. Incorporated churches having no constitutional or bylaw provision dealing specifically with elections may be subject to the requirements of state nonprofit corporation law. As an example, if an incorporated church has no constitution or bylaws, and the applicable state nonprofit corporation law specifies quorum, notice, and voting requirements, then these requirements must be followed. If they are not, a congregational election may be voidable. To illustrate, one court ruled that a church whose constitution and bylaws failed to define the “notice” requirements applicable to church membership meetings was bound by the notice provisions in state nonprofit corporation law. Since the church failed to comply with state law, its meeting was ruled invalid by the court.8 Most states have religious or nonprofit corporation laws that specify to varying degrees how elections are to be conducted.9 The procedures specified by state law generally are effective only with respect to those matters not addressed in the corporation's constitution or bylaws. Should an incorporated church's procedures for electing a minister conflict with state laws dealing with corporate formalities, authority exists for the proposition that an election in accordance with the church's bylaws will not be voided.10
What authority do the civil courts have to review church or denominational decisions regarding the selection of clergy? The United States Supreme Court has ruled that “[f]reedom to select the clergy, where no improper methods of choice are proven, we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.”11 This principle has been applied in several cases. For example, one court has ruled that it had no jurisdiction to determine whether or not an interim minister was improperly appointed, since “[t]he appointment of a minister is a purely ecclesiastical matter which should not be subject to review by a civil or secular court.”12 In another case involving the selection of a minister within the United Methodist Church, a court observed:
[T]he appointment of a pastor is a purely subjective decision to be made by the empowered bishop to advance the purpose of the church organization. Appointment is undoubtedly an ecclesiastical matter to which judicial deference is mandated by the first amendment. Whether or not the conference followed required procedure in appointing [the minister] is not for a civil court to consider, because it would entail scrutinizing the appointment decision--making process and reviewing the subjective criteria used by the church organization in reaching its decision.13
A number of federal appeals courts similarly have refused to resolve disputes involving the selection of clergy. To illustrate, the federal appeals court for the fifth circuit (covering the states of Louisiana, Mississippi, and Texas) has ruled that since a minister is the “lifeblood” of the church, the assignment of a minister is inherently a matter of ecclesiastical concern.14 The federal appeals court for the District of Columbia circuit has issued two important decisions declining to review disputes concerning the selection of clergy. In one case, the court concluded that the first amendment guaranty of religious freedom “precludes governmental interference with ecclesiastical hierarchies, church administration, and appointment of clergy.”15
In the other case, the court refused to hear a claim by a Methodist minister that an annual conference of the United Methodist Church discriminated against him on account of age in refusing to appoint him to a suitable parish.16 The court emphasized that any determination regarding “whose voice speaks for the church” is a religious matter, and that the “evaluation of the gifts and graces of a minister must be left to ecclesiastical institutions.” The pastor had argued that the refusal of civil courts to resolve controversies regarding the selection of clergy could lead to “the most egregious civil rights violations.” For example, he suggested that under the court's rule of non--interference “the courts would be prevented from enforcing homicide statutes against churches that selected their pastors by making them play Russian roulette.” The court rejected this claim, noting that the constitutional guaranty of religious freedom is subject to a “balancing” test. Clearly, the governmental interest in preserving life and preventing homicides would outweigh the interests of a church in selecting clergy through such means. The court noted that there may be other civil rights that outweigh a church's constitutionally protected right to select its clergy, but the federal policy of eliminating age discrimination is not one of them. The court stressed that the constitutional guaranty of religious freedom is at its apex when the church--pastor relationship is involved, and that non--clergy church employees are entitled to a lesser degree of protection. Further, “a church is always free to burden its activities voluntarily through contracts, and such contracts are fully enforceable.” Therefore, a church can limit its authority to select or terminate a minister by contractual provisions.
The federal appeals court for the fourth circuit (covering the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia) rejected a woman's claim that the failure of the Seventh Day Adventist church to appoint her to a particular pastoral position discriminated against her on the basis of sex and race.17 The court agreed that the government's interest in eradicating discrimination based on sex and race was of the highest order, but it nevertheless concluded that it was outweighed by a church's constitutionally protected right to choose its clergy. It observed that “the right to choose ministers without government restriction underlies the well--being of the religious community, for perpetuation of a church's existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines both to its own membership and to the world at large.” The court emphasized that its ruling was limited to a church's right to select clergy, and that the government's interest in eliminating race and sex discrimination would outweigh a church's right to discriminate in decisions affecting non--clergy employees.
The federal appeals court for the first circuit (covering the states of Maine, Massachusetts, New Hampshire, and Rhode Island) ruled that “[h]owever a suit may be labelled, once a court is called upon to probe into a religious body's selection and retention of clergymen, the first amendment [guaranty of religious freedom] is implicated . . . . The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern.”18 The court concluded that any judicial review of decisions involving the selection or termination of clergy “would require judicial intrusion into rules, policies, and decisions which are unmistakably of ecclesiastical cognizance. They are, therefore, not the federal courts' concern. . . .”
Numerous state courts have followed the general rule of judicial non--intervention in controversies involving the selection of clergy. To illustrate, an Illinois appeals court dismissed a lawsuit brought by a Methodist minister against a Methodist conference for breach of contract and wrongful interference with contractual relations.19 The minister claimed that despite his “good and satisfactory work” as pastor of a local church, he was assigned by the conference to another church which constituted “a severe demotion in terms of the number of church members, compensation, and opportunity for service.” The court observed that
the appointment of a pastor is a purely subjective decision to . . . advance the purpose of the church organization. Appointment is undoubtedly an ecclesiastical matter to which judicial deference is mandated by the first amendment. Whether or not the conference followed required procedure in appointing [the minister] is not for a civil court to consider, because it would entail scrutinizing the appointment decision--making process and reviewing the subjective criteria used by the church organization in reaching its decision.20
The court noted that the appropriate remedy for the minister was “to higher judicial tribunals within the church hierarchy,” and if the minister “has made such appeal and been denied relief, this court must defer to the decision of the church.” It also rejected the minister's contention that the so--called “neutral principles of law” approach gave the civil courts jurisdiction over this kind of dispute, since the neutral principles approach “has been used primarily for disputes over ownership of church property.”
There have been a few cases, however, in which the courts have resolved controversies regarding the selection of clergy that have not involved religious discipline, faith, rule, custom, or law. For example, a minister may have been elected at a meeting which was not properly called. Some courts have concluded that there is no legitimate basis, constitutional or otherwise, for a civil court to refrain from resolving such a dispute. The Supreme Court has observed that the civil courts need not stay their hand in every case involving a church dispute, since “not every civil court decision jeopardizes values protected by the First Amendment.”21 Further, the Court's recognition that churches have a constitutionally protected right to select clergy only pertains to instances “where no improper methods of choice are proven.”22 Accordingly, a number of courts have intervened in church disputes involving the selection of a minister if there has been an allegation of “improper methods of choice.”
To illustrate, the constitution of a Lutheran church provided that “the candidate receiving the majority of all votes cast shall, upon unanimous approval, be declared elected.” The church convened a congregational meeting to vote on a pastoral candidate, and the candidate received a majority of the votes cast (but not “unanimous approval”). The candidate was subsequently employed, and a group of dissidents filed a lawsuit in which they asked a civil court to enforce the church's constitutional requirement of “unanimous approval.” While noting that the first amendment prohibits a court “from entangling itself in matters of church doctrine or practice,” the court concluded that it could resolve controversies, such as this one, involving the interpretation “of an ambiguous provision in what amounts to a contract between the members of the congregation, dealing with a purely procedural question” and involving “no ecclesiastical or doctrinal issues.” The court also noted that it found no “dispute resolution process” within the denomination to which it could defer.23
Such cases may be summarized as follows:
First, a church's right to select clergy is a constitutional right of the highest order. Accordingly, as a general rule, the civil courts will not resolve controversies regarding the selection of clergy.
Second, some courts have created exceptions to the general rule. Consider the following:
a. Church decisions regarding the selection of clergy may be reviewed if a fundamental civil right is implicated that outweighs a church's constitutionally protected right to select clergy. At this time, no case has arisen that has presented a civil right of sufficient importance to outweigh a church's right to choose clergy free from judicial scrutiny. However, one court suggested that violation of the criminal law in some cases might present such a case. The right to be free from discrimination based on race, sex, and age—while of paramount importance—does not outweigh a church's right to select clergy in the manner it chooses.
b. Churches will be legally bound by their oral and written contracts. Accordingly, controversies regarding the selection of clergy may be reviewed by the civil courts if a contract right is involved. The Supreme Court has held that the courts may review contracts governing “the manner in which churches own property, hire employees, or purchase goods.”24 However, the mere assertion of a “breach of contract” will not be sufficient to trigger civil court review.25
c. A few courts have ruled that they have authority to resolve controversies involving the selection of clergy if there is a purely procedural dispute not involving religious discipline, faith, rule, custom, or law. An example would be an ambiguous provision in a church's bylaws concerning the notice to be given for a church business meeting at which a minister is selected. The United States Supreme Court seemed to sanction this exception when it noted that a church's constitutionally protected right to select clergy only pertains to instances “where no improper methods of choice are proven.”26
d. The courts are more willing to review controversies involving the selection of non--clergy church staff, since a church's constitutional right to select such employees is less substantial than the right to select clergy.
For related information on this topic see the following articles: