Religious Immunity – A Postscript

January 31, 2012 § 1 Comment

When I  expressed my reaction to Hosanna-Tabor, I treated it as a matter of policy, an abstraction.  When I read the decision, however, I thought about it as a federal lawsuit, one in which I would have loved to be a lawyer for Ms. Perich.  At the trial level I would have insisted on the right to engage in discovery before the court ruled on the defendant’s immunity claim.  I would have included in my pleadings an alternative claim that, even if the court decided that Ms. Perich was a “minister” and should be relegated to the church’s internal dispute resolution procedures, the court should  determine whether such procedures existed and, if they did, the nature of them.

The First Amendment surely does not require a citizen to seek internal remedies within a church if the church does not offer such remedies.  And if the church relies on the statements of Paul in his letter to the Corinthians as a basis for its hostility toward the judicial system, Ms. Perich and the trial court should be entitled to know whether the internal dispute resolution process met Paul’s requirements.  If not, the court might properly conclude that the church’s First Amendment claims were offered in bad faith.

In footnote 4 of the majority opinion, Chief Justice Roberts wrote:

“4 A conflict has arisen in the Courts of Appeals over whether the ministerial exception is a jurisdictional bar or a defense on the merits. . . .[citations omitted] We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. . .  District courts have power to consider ADA claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.”  [See ADL letter to NY Times]  Affirmative defenses have to be proved by the partty  asserting them.

Some Questions

So – and here I have fallen prey to the fantasies of an old lawyer who never tires of watching re-runs of Spencer Tracy cross-examining “Matthew Brady” in “Inherit the Wind”- I would have deposed the Hosanna-Tabor preacher.  Some of the questions would have been:

Pastor, how many members of your congregation do you consider qualified to judge the world?  Can you give me a first and last name and an address?

How confident are you that one or more of your congregation could competently judge an angel?  If so, on what do you base that confidence?

What measures do you have in place to insure that any member who is chosen to resolve the dispute with Ms.  Perich has not, at some time in his or her life, been guilty of sexual immorality or adultery, for which he or she has not been justified and sanctified?

I am correct, am I not, that if a member is guilty of such a transgression after having been justified and sanctified, he or she would not be qualified to serve as a judge in a dispute?  Or does the process of justification and sanctification act prospectively as well as retroactively?  In other words, does it come with a lifetime guarantee?

How about slander?  Same answer?  Greed?  Stealing?  Swindling?  Getting drunk?

You do agree, do you not, that Paul assumed that the Corinthians met these requirements when he directed them to resolve disputes among themselves?  Do the teachings and beliefs of your church agree with Paul’s statement?  Was the decision to fire Ms. Perich for considering litigation in our judicial system based theologically on Paul’s statement to the Corinthians?

Does the Lutheran Church believe that our courts are presided over by “ungodly” people?

As a matter of fact, let me pose a hypothetical question to you:  Suppose the court to which Ms. Perich proposed to submit her dispute were presided over by a Lutheran.  Would you then be ok with that judge deciding the matter, or would you still consider that court to be ungodly?  [It’s too bad the Hosanna-Tabor church is not in Houston.  Then I could use my friend Shearn Smith as an example.]

Does Lutheran theology teach that our courts represent a “way of life scorned in the church”?

Now Pastor, you have found fault with my questions, saying that they are not relevant and improper.  In view of your objections and those of your counsel, isn’t it true that the church’s unwillingness to submit to the judgment of our laws and our courts has nothing to do with what Paul wrote to the Cornthians?  Isn’t that what you are really saying?


I don’t know whether this kind of inquiry was made before this case went to the appellate courts.  I doubt it.  It was decided by the trial court in response to a motion for summary judgment.  If I had been counsel for Ms. Perich I would have asked the court to withhold a ruling on the defendant’s motion pending some opportunity for discovery.  Where the motion is based on an affirmative defense, such a request is usually granted.  Whether that was done or not I can’t tell.

Given the language of the Supreme Court opinion about the absolute right of a church to hire and fire its “ministers”, my effort might not have done any good.  But it would have been fun.

Just say’n.

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