Defamation claims against religious organizations are more common than you would think. It’s almost impossible to challenge who a religious organization selects as a minister or how it disciplines that minister. So these claims focus on the idea that what was said about the minister is defamatory—something that is not directly controlled by constitutional law. Here is a recent example of a case that ultimately had an indirect constitutional defense.
In Dermody v. Presbyterian Church (U.S.A.), a Kentucky court recently held that a minister’s defamation suit against his church in connection with the church’s publishing of his disciplinary action is not allowed to go forward.1 The court based the decision on the ecclesiastical abstention doctrine, in a rather tangential way. This First Amendment doctrine is the legal concept that requires courts to defer to church decisions about doctrine and internal government. In the end, this case gives additional guidance to religious organizations conducting internal investigations or exercising employee or member discipline within the ministry. It is a little complex, but each twist offers some helpful thoughts.
The case started with an unauthorized formation of a nonprofit—and ultimately resulted in an internal investigation and discipline of a minister. The minister was the Deputy Executive Director of Mission for the Presbyterian Church of the United States of America (PCUSA). While the minister was serving in this role, several of his subordinates created a nonprofit to support an internal church initiative and obtained a $100,000 grant from PCUSA. But the nonprofit was created without authority from the PCUSA, and apparently in violation of internal policy. When the existence of the nonprofit was discovered, the minister in charge was in trouble. After conducting an internal investigation into the matter, PCUSA issued a written warning to the minister that he had violated several PCUSA policies, including a determination that he had violated the PCUSA’s ethics policy. The minister denied any wrongdoing, and further claimed he had no knowledge of, and did not approve, the formation of the nonprofit.
Despite the minister’s arguments, because of the finding that the minister had violated the PCUSA ethics policy, the disciplinary action (the formal written warning) was reported to a division of the Presbytery. The matter was also reported by the Presbyterian Outlook, an independent publication that reports on matters of interest to the Presbyterian community.
Because of this and some other alleged reporting of his discipline, the minister in turn brought suit against PCUSA for defamation. (Defamation always requires the information being “published” to someone.)
The church moved for summary judgment, which is a request to the court to rule that there is really no claim, because it is somehow barred by the law. The church argued that the lawsuit could not go forward because of the ecclesiastical abstention doctrine that prohibits civil courts from deciding cases that turn on the interpretation of doctrine or other matters of internal church government. In other words, this is one aspect of the classic doctrine that the State has to stay out of the church’s business. The church put forth several arguments under this doctrine, including that the reporting of disciplinary action was required by the Church’s policies, and that the minister had agreed to the reporting of any disciplinary action as a condition of his ordination. The court ultimately agreed with the church, but with an interesting twist.
The court did not refuse to hear the case altogether, as it could have done. Instead, the court considered the elements of the defamation claim, pointing out that truth is a complete defense in any defamation lawsuit. PCUSA could win if it could demonstrate that the “defamatory statement”—that the minister had violated PCUSA’s ethics policy—were true. But how would the court decide if the statement were true?
In order to decide whether that statement were true or false, the court would have to determine if the minister had, in fact, committed ethical violations under PCUSA’s policy. This, the court explained, would necessarily require interpreting church doctrine and policies. In turn, doing this is impermissible under the ecclesiastical abstention doctrine. Because the church had made a finding and a disciplinary decision based on its own internal investigation and its own internal church policy, the truth of that finding could not be questioned. Because it could not be questioned, the finding had to be considered true by the court. And this gave PCUSA a complete defense to the charge of defamation. The court granted summary judgment for the church and dismissed the lawsuit.
Defamation lawsuits are always a concern when a church or ministry decides to share the findings of an internal investigation or other disciplinary action. In this case, the information was shared only within the presbytery and the denomination. If the findings are shared more widely, the risk goes up.
But the good news is that this case is a victory for church discipline. Careful attention to some of its lessons may go a long way toward protecting your ministry during an investigation or disciplinary action. Plus, because the case turned on this point, rather than on the fact that the minister was an actual employee of the church, the lessons may have broader application to church membership discipline as well. Here are a few points to consider:
- Tie your investigative findings and disciplinary action (and any statements that might be perceived as defamatory) to ministry policy and doctrine. The critical point here was that the church had done an internal investigation and had reached a finding that the minister had violated church policy. Because the finding was tied to that doctrinal process, the court ruled that it could not be questioned and its truth had to be accepted. This argument creates a very strong defense for ministries because truth is a complete defense to defamation actions. Tying any statement regarding discipline to a ministry policy or doctrinal issue may help provide a ministry with a truth defense to a defamation claim—that the court should accept the statement as true (and thus, provide the ministry with a total defense). Normally, a court should defer to the ministry’s own determination of whether or not a violation of doctrine or policy occurred.
- Have a policy on reporting discipline. This case also provides support for a church’s ability to follow its own internal procedures in reporting disciplinary actions of its employees, particularly where the report is based on a violation of church doctrine or internal policy. Though the outcome did not turn on this fact, the church in this case reported the disciplinary action pursuant to its own internal protocols, and the employee had apparently agreed to those protocols. Having these types of protocols in place provides another layer of protection and support for a church’s decision to discipline an employee or member. This is particularly true where reports may be broader than in normal employment situations, such as reporting child abuse allegations to another ministry.
- Report disciplinary action only as broadly as necessary. While you may have the right to report widely within the organization—and technically, you could publish the truth to the whole world—lawsuits are less likely where information is not broadly shared.
- Recognize the reality of litigation. Note that this case still had to proceed through months of expensive litigation (including costs and attorney fees) before the church ultimately saw victory. When we say expensive, litigating through this stage could easily cost $50,000 to upwards of $100,000. Though this case was resolved quicker than most, it is still an important reminder that even where a ministry may be within its right to report the disciplinary action of an employee or member, this does not necessarily prevent a lawsuit from being filed, and in turn, from the ministry paying to defend it. Ministries should consider discipline actions and reporting carefully and follow doctrinal and spiritual principles.
- Insure for possible litigation. Ministries may want to consider having adequate insurance for defamation and other employment-related lawsuits. It makes a big difference in covering the cost of litigation.
- Apply the religious law defenses. On the bright side, a lawyer who is aware of the important defenses specifically available to religious organizations can both help the ministry with policies, investigations, and disciplinary decisions, and make relatively quick work of lawsuits like the one at issue here.
1 Dermody v. Presbyterian Church (U.S.A.), No. 15-CI-2624 (Sept. 21, 2015).
After losing in the trial court in this case, the former minister appealed. On July 28, 2017, the Kentucky Court of Appeals affirmed the lower court's judgment in a published opinion that essentially agreed with the rationale of the district court. The appellate court held that the ecclesiastical abstention doctrine barred the defamation lawsuit in this case, noting: “[W]e cannot provide [the minister] the relief he seeks without excessive government entanglement into an ecclesiastical controversy—that controversy is the disagreement between a minister and his church about what constitutes unethical conduct by one of that church’s ministers.” Dermody v. Presbyterian Church (U.S.A.), No. 2015-CA-001613-MR (Ky. App. Jul. 28, 2017) (slip op. at 13).
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