Termination of Clergy
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: m31
The termination of a minister's services can occur in a number of ways and for a variety of reasons. For example, a church may dismiss a minister for committing a specific ground for discharge identified in an employment contract or in the church bylaws, if it follows precisely the procedure for discharge described in the contract or bylaws. There is no doubt that churches have the legal authority to dismiss clergy under these circumstances, and the courts will not review such dismissals. However, clergy dismissals ordinarily do not fit within this category. Often, dismissed clergy sue their former church or denomination, arguing that their dismissal (1) was not based on conduct specified in the employment contract or bylaws as grounds for dismissal, (2) violated the procedure prescribed in the employment contract or bylaws for dismissing clergy, (3) violated a civil or property right, (4) was a breach of the employment contract, or (5) caused emotional distress, or amounted to defamation or invasion of privacy. Should the civil courts entertain such lawsuits? Do churches have the legal right to dismiss clergy though stated procedures are not followed, or a specific basis for discharge has not been conclusively established? Such questions have posed difficult challenges for the civil courts.
The subject of judicial intervention in ecclesiastical matters, including the termination of clergy, is discussed fully in Judicial Resolution of Church Disputes.1 To summarize, the courts generally have refused to review claims by dismissed clergy that their dismissal violated their legal rights or was not in accordance with stated ecclesiastical procedure. This view is based on a number of Supreme Court rulings that have reached the following conclusions: (1) the civil courts may never intervene in disputes involving questions of ecclesiastical discipline;2 (2) civil courts may not resolve alleged deprivations of the “rights of property, or of contracts” of dismissed clergy if the alleged violations “follow as an incident from decisions of the church . . . on ecclesiastical issues”;3 (3) the civil courts cannot resolve controversies regarding the qualifications (or lack of qualifications) of clergy, even if “civil rights” are involved, absent fraud or collusion;4 and (4) the civil courts may never resolve claims of dismissed clergy that their dismissal improperly violated stated ecclesiastical procedure.5
The civil courts have cited three grounds supporting the general rule of judicial noninterference in clergy dismissal cases. First, in the Watson decision, the Supreme Court seemed to base the rule on the “implied consent” of church members to the exclusive jurisdiction of the church:
All who unite themselves to such a body do so with an implied consent to its government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if anyone aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance subject only to such appeals as the organism itself provides for.6
Second, several courts in more recent years have based the general rule of judicial nonintervention on the first amendment's religion clauses. The Supreme Court itself suggested that this was a possible basis for the rule in Watson, when it observed:
But it is a very different thing where a subject matter of dispute, strictly and purely ecclesiastical in its character—a matter over which the civil courts exercise no jurisdiction, a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standards of morals required of them—becomes the subject of its action. It may be said here, also, that no jurisdiction has been conferred upon the tribunal to try the particular case before it, or that, in its judgment, it exceeds the powers conferred upon it, or that the laws of the church do not authorize the particular form of proceeding adopted; and, in a sense often used in the courts, all of those may be said to be questions of jurisdiction. But it is easy to see that if the civil courts are to inquire into all these matters, the whole subject of doctrinal theology, the usages and customs, the written laws, and fundamental organization of every religious denomination may, and must, be examined into with minuteness and care, for they would become, in almost every case, the criteria by which the validity of the ecclesiastical decree would be determined in the civil court. This principle would deprive these bodies of the right of construing their own church laws . . . and would, in effect, transfer to the civil courts where property rights were concerned the decision of all ecclesiastical questions.7
Third, the courts often have acknowledged that churches are much more qualified to resolve their own disputes (many of which turn on questions of doctrine and practice) than the civil courts. The Supreme Court has observed:
Nor do we see that justice would be likely to be promoted by submitting those decisions to review in the ordinary judicial tribunals. Each of these large influential bodies . . . has a body of constitutional and ecclesiastical law of its own, to be found in their written organic laws, their books of discipline, in their collections of precedents, in their usage and customs, which to each constitute a system of ecclesiastical law and religious faith that tasks the ablest minds to become familiar with. It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case, to one which is less so.8
Similarly, the Court has observed:
The decisions of ecclesiastical courts, like every other judicial tribunal, are final, as they are the best judges of what constitutes an offense against the word of God and the discipline of the church. Any other than those courts must be incompetent judges of matters of faith, discipline, and doctrine; and civil courts, if they should be so unwise as to attempt to supervise their judgments on matters which come within their jurisdiction would only involve themselves in a sea of uncertainty and doubt which would do anything but improve either religion or good morals.9
The vast majority of state courts and lower federal courts have followed the general rule of judicial noninterference in ecclesiastical disputes involving the dismissal of clergy, and accordingly have ruled that the expulsion of a minister is an ecclesiastical matter that is not reviewable by the civil courts even if civil, contract, or property rights were allegedly violated.10
To illustrate, the federal appeals court for the sixth circuit (covers the states of Kentucky, Michigan, Ohio, and Tennessee) rejected the claim of a dismissed Methodist minister that his dismissal had been fraudulent, arbitrary, and a “collusive application of church disciplinary rules.”11 The minister also alleged defamation, infliction of emotional distress, and breach of contract. The appeals court, in affirming a lower court's summary judgment in favor of the church, ruled that civil court review of clergy dismissals “is still only allowed for fraud or collusion of the most serious nature undermining the very authority of the decision--making body.” Such exceptions, noted the court, are extremely rare and did not apply in this case. Significantly, the court also rejected summarily the minister's self--serving allegations of a deprivation of his “civil, contract, or property rights,” since such rights, if they existed at all, were mere consequences of the underlying ecclesiastical determination and therefore could not afford an independent basis for civil court review.
The federal court of appeals for the first circuit (covers the states of Maine, Massachusetts, New Hampshire, and Rhode Island), in dismissing a minister's allegations that his termination violated various “contract and property rights,” concluded that the first amendment guaranty of religious freedom prevents the civil courts from resolving such lawsuits “however a lawsuit may be labelled.”12
In other words, the fact that a dismissed minister alleges breach of contract, defamation, emotional distress, or similar “secular” theories of liability will not enable the civil courts to resolve what in essence is a dispute between a minister and his or her church or denomination. The court observed: “However 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.” The court concluded:
At bottom, [the ex--minister's] complaint directly involves, and would require judicial intrusion into, rules, policies, and decisions which are unmistakably of ecclesiastical cognizance. They are, therefore, not the federal courts' concern. . . . The [church's] own internal guidelines and procedures must be allowed to dictate what its obligations to its members are without being subject to court intervention. It is well--settled that religious controversies are not the proper subject of civil court inquiry. Religious bodies must be free to decide for themselves, free from state interference, matters which pertain to church government, faith, and doctrine.13
Quoting a decision of the United States Supreme Court, the court observed that it was obligated to accept a church's decisions “on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.” The court's decision is reinforced by the fact that it was upholding the lower court's order dismissing the lawsuit. Under federal law, a motion to dismiss may be granted only if the allegations in the plaintiff's complaint, accepted as true, state “no set of facts which might entitle the plaintiff to relief.” The court's dismissal of this lawsuit under this minimal standard of review adds force to its conclusions.
The federal appeals court for the fifth circuit (covers the states of Louisiana, Mississippi, and Texas) dismissed a Methodist pastor's lawsuit arising from his claim that he had been expelled from his parish because of his wife's race. The pastor argued that the court should hear his claim since he was dismissed for reasons unrelated to religious belief or policy. The court ruled that there is no exception to the prohibition against judicial interference with matters of church administration, including the selection or dismissal of clergy.14
A Georgia state court, in refusing to review a dismissed minister's claim that his dismissal constituted a “breach of contract,” observed that “[t]he civil courts cannot take jurisdiction of an ecclesiastical issue even if the parties present it for resolution, because the first amendment [guaranty of religious freedom] prohibits such action by the civil judicial system. The entanglement of civil authority into ecclesiastical affairs which is prohibited by our fundamental law and which was one of the promptings of the creation of this nation is evident in this lawsuit. A priest sues his church, bringing into a civil court dispute over his termination as [priest]. He seeks monetary damages representing lost wages, consequential damages, interest and costs, claiming breach of an alleged civilly enforceable contract governing his call.”15 The court, in concluding that its resolution of such a dispute would impermissibly entangle it in ecclesiastical matters, noted that “[f]or the court to decide whether a binding civil contract was intended; for the court to construe the meaning of that contract if there is one, or leave to a jury its construction if ambiguity raises questions of fact; for the court or jury to determine whether canons or manual directives control; and most clearly, for a jury to decide whether [grounds existed] which warranted removal of the [priest]; all of these incursions into a religious controversy constitute a large leap beyond the constitutional boundary. Inextricably entangled is whether the priest's performance of his duties as a priest met with the requirements of his church as measured by ecclesiastical concerns.”
The District of Columbia court of appeals ruled that the United Methodist Church could not be sued by a dismissed minister who sought to challenge his dismissal in a civil court.16 The UMC filed a motion to dismiss the ex--minister's lawsuit, but a trial court rejected this motion. This decision was appealed immediately to a court of appeals, which ruled in favor of the UMC. The court of appeals began its opinion with a very important observation—the constitutional guaranty of religious freedom “grants churches an immunity from civil discovery and trial under certain circumstances in order to avoid subjecting religious institutions to defending their religious beliefs and practices in a court of law.” Accordingly, a trial court's decision denying a church's claim of immunity from civil liability may be appealed immediately to prevent the church from having to endure a trial that may later be deemed improper. The importance of this conclusion cannot be overstated. Next, the court observed that the “United States Supreme Court has long held that, generally, civil courts are not a constitutionally permissible forum for review of ecclesiastical disputes” involving “matters of discipline, faith, internal organization, or ecclesiastical rule, custom or law.” While there are “limited exceptions” to this general rule, no exception applies to disputes involving clergy dismissals. On the contrary, “the right to choose a minister without judicial intervention underlies the well--being of 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 the world at large. Any attempt by the civil courts to limit the church's choice of its religious representatives would constitute an impermissible burden on the church's first amendment rights.” Accordingly, the “courts have concluded that employment disputes concerning the status of pastors are inherently ecclesiastical and cannot constitutionally be subject to review.” The court also rejected the dismissed minister's claim that his dismissal violated church procedures, since “a secular evaluation of procedures that ecclesiastical or canon law requires the church to follow is precisely the type of inquiry the first amendment prohibits.” The court emphasized that churches are “not above the law,” and that in some cases they may be legally liable for breaching an employment contract if the contract is in writing and the breach of contract claim can be clearly separated from ecclesiastical considerations.
A Louisiana state appeals court, in refusing to hear a lawsuit (alleging defamation) brought by a dismissed minister against his denomination, referred to United States Supreme Court decisions limiting the authority of civil courts to hear such cases and concluded: “It would be ludicrous to believe that the constitutional principles upheld by the United States Supreme Court . . . could be satisfied by allowing this intrusion into the disciplinary proceedings of an ecclesiastical board. To allow defamation suits to be litigated to the fullest extent against members of a religious board who are merely discharging the duty which has been entrusted to them by their church could have a potentially chilling effect on the performance of those duties.”17
In another case, a Louisiana state appeals court dismissed a lawsuit brought by a dismissed minister against his denomination.18 The minister, who had been dismissed for fiscal irresponsibility and other misbehavior, sued the state board of his denomination for defamation, wrongful disfellowship because of procedural irregularities by the denomination, and wrongful deprivation of a livelihood. The court held that all statements made at the board's disciplinary hearing, as well as the publication of the resolution of disfellowship announcing the board's decision, were privileged. This meant that the communications made by the denomination regarding the disciplinary action could not be defamatory without a finding “by clear and convincing evidence that the board or its members acted or spoke with malice.” Malice in this context, as in other cases of defamation, requires not only that the statements made were in fact false, but also that the speakers knew that they were false or uttered them with a reckless disregard as to their truth or falsity. As in other contexts, this is a standard that is rarely proven. The court concluded that the minister's “loss of ministerial income must be accepted as a necessary consequence of his dismissal from ministry.” Several other courts have rejected the claim of dismissed clergy that their dismissing church or denominational agency was defamatory.19
The courts consistently have held that ministers who fail to “exhaust” their appeals within an ecclesiastical hierarchy are forbidden to seek redress in the civil courts.20 This means that the courts will refuse to hear controversies involving the dismissal of a minister if the minister failed to pursue the remedies available within his or her church or denomination.
Some courts have recognized limited exceptions to the general rule of judicial non--intervention in clergy dismissal disputes. The general rule (discussed above), plus the exceptions, are summarized below.
1. In general, the civil courts will not resolve disputes involving the dismissal of clergy. This rule is based on the “implied consent” of clergy to the exclusive jurisdiction of their church, the first amendment guaranty of religious freedom, and the fact that church leaders are better equipped than civil courts to resolve such disputes. The general rule will be followed even if the dismissal of a minister results in deprivation of property, contract, or civil rights,21 and even if the ecclesiastical process was “arbitrary” in the sense that it was not in accordance with the church's own internal rules and procedures.22
2. Some courts have suggested that they have authority to review clergy dismissals under any of the following circumstances:
a. The Supreme Court has indicated that clergy dismissals can be reviewed by civil courts if based on “fraud or collusion”.23 However, the mere assertion that a dismissal was based on fraud or collusion will not suffice, since the Court has required that the alleged fraud or collusion be motivated “by bad faith for secular purposes.”24 It would be extraordinary indeed for a religious organization to be found guilty of such conduct, and understandably, none has ever been found to be so.
b. The Supreme Court indicated (in 1952) that clergy dismissals can be reviewed by the civil courts if “improper methods of choice are proven.”25 The continuing validity of this exception is questionable, since in 1976 the Court specifically ruled that
whether or not there is room for “marginal civil court review” under the narrow rubrics of “fraud” or “collusion” when church tribunals act in bad faith for secular purposes, no “arbitrariness” exception—in the sense of an inquiry whether the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church laws and regulations—is consistent with the constitutional mandate that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom or law. For civil courts to analyze whether the ecclesiastical actions of a church judicatory are in that sense “arbitrary” must inherently entail inquiry into the procedures that canon or ecclesiastical law supposedly require the church adjudicatory to follow, or else into the substantive criteria by which they are supposedly to decide the ecclesiastical question. But this is exactly the inquiry that the first amendment prohibits . . . .26
According to this language, the civil courts can never review the dismissals of clergy in hierarchical denominations, even if a dismissed minister alleges that the denomination failed to follow prescribed procedure. As a result, if there is any basis for civil court review of clergy dismissals allegedly based on improper procedure, it would be in the context of “congregational” or independent churches. Even here, it is questionable whether or not civil court review would be consistent with the Supreme Court's 1976 ruling in the Serbian case.
Some civil courts have been willing to review questions of proper procedure in clergy dismissal controversies. At best, such decisions are appropriate only if three conditions are satisfied: (1) the decision to dismiss a minister was made by a congregational church rather than a hierarchical church, (2) the dismissal violated stated procedure, and (3) a civil court can resolve the dispute without inquiring into ecclesiastical doctrine or polity. To illustrate, the courts have ruled that the attempted discharge of a minister by congregational vote was invalid where the vote was conducted at an improperly called church meeting;27 the meeting was “so beset with confusion that no business could have been legally transacted”;28 the notice of the meeting did not specify that a vote would be taken on the minister's termination;29 and, the vote to terminate a minister's services was taken after the minister had properly dismissed the meeting.30 Similarly, if a church's bylaws vest authority to remove a minister in the general membership, then the church board has no such authority.31
Some courts also have been willing to interpret ambiguous language in church constitutions and bylaws pertaining to termination of clergy. For example, one court resolved a church controversy over the number of votes needed to terminate a minister's services.32 The bylaws specified that “three--fourths of the voting members present” could vote to terminate the minister's services. At a duly called meeting, the minister was voted out of office by more than three--fourths of the members present who voted. However, several members abstained from the vote, and accordingly the pastor argued that he had not been properly voted out of office since fewer than three--fourths of the total voting members present (including those who voted and those who did not) voted against him. The court concluded that the phrase “three--fourths of the voting members present” included those who voted as well as those who abstained, and accordingly the minister had not been properly dismissed. Another court agreed to determine whether proxy votes should be recognized in a meeting called to vote on the termination of a minister.33
A number of courts have been willing to determine whether or not a sufficient number of eligible members voted to dismiss a minister. In one case, a pastor ignored a congregational decision to terminate his services on the ground that most of those participating in the congregational vote were not lawful members. The pastor alleged that most of those voting against him had ceased to be members by their failure to abide by an unwritten church “rule” requiring that members attend church regularly and contribute to the church's support. Those who had been “disfellowshiped” claimed that they were aware of no such rule, and that they were never notified that their membership was in jeopardy. The court concluded that the expulsion of the church members was improper, since the alleged rule was of doubtful existence, and since the members were not given a hearing on their status.34
If a church's constitution or bylaws specify the manner by which a member may lose his membership, this will be controlling. For example, when a church's constitution specified that membership status could be severed only by “excommunication,” and when no member voting to dismiss a minister had been excommunicated, the minister could not challenge his dismissal on the ground that several of the members voting against him had forfeited their membership through irregular attendance and inadequate support.35 This was so despite the fact that the church's constitution also provided that “no one can . . . remain a member of this congregation . . . but such as partake of the Lord's Supper with due frequency . . . and contribute according to his ability toward the maintenance of the church.” The court reasoned that the members' infrequent attendance and minimal support was justified by their belief that the pastor had deviated from the church's doctrines.
In another case, a minister challenged a congregational vote to dismiss him on the ground that many of the members who voted against him had lost their membership by holding separate services in another church under another minister. The court disagreed: “The constitution and bylaws nowhere specifically provide a procedure for determining whether a member has lost his membership because of his conduct or beliefs. However, we think it must be implied . . . that it is for the congregation to make this determination.”36
c. Presumably, a court could review a clergy dismissal if a civil, contract, or property right was allegedly violated that was independent of rather than incident to the disciplinary process, and that required no inquiry into religious doctrine or polity. This would be an extraordinary case, and few if any courts have reached such a conclusion in recent years. The key point is this: the alleged civil, contract, or property right must be independent of and not a consequence of an underlying ecclesiastical dispute involving ecclesiastical doctrine, polity, or discipline. As the Supreme Court itself has observed, there is no basis for civil court review if the alleged property right that was violated by a church's dismissal of a minister is “an incident from decisions of the church . . . on ecclesiastical issues.”37 Further, a number of courts have noted that the mere assertion that a civil, contract, or property right has been violated is not enough to warrant civil court intervention, for this often can be a spurious effort to involve a court in an essentially ecclesiastical controversy.38 To hold otherwise, according to the Supreme Court's decision in Watson,39 “would lead to the total subversion of such religious bodies, if anyone aggrieved by one of their decisions could appeal to the secular courts and have them reversed.”
The courts will enjoin a properly dismissed minister from holding services in the event that he ignores a church's vote of dismissal.40
For related information on this topic see the following articles: