Published in Louisville Bar Association’s Bar Briefs, May 2015
By Joseph A. Bilby, Stoll Keenon Ogden PLLC
Within the past twelve months, the Kentucky Supreme Court has issued three landmark opinions defining the abstention principles that courts should apply to lawsuits whose resolution could have an impact on the governance of religious organizations. In St. Joseph Catholic Orphan Society v. Edwards, 449 S.W.3d 727 (Ky. 2014), the court formally recognized and adopted the ecclesiastical abstention doctrine. In Kirby v. Lexington Theological Seminary, 426 S.W.3d 597 (Ky. 2014), and its companion case, Kant v. Lexington Theological Seminary, 426 S.W.3d 587 (Ky. 2014), the court adopted and defined the parameters of the ministerial exception, which applies broader abstention principles within the specific context of the employer-employee relationship. Taken together, these three decisions represent a judicial effort to modernize this corner of legal doctrine within a remarkably narrow span of time.
First Amendment Foundations
Religious autonomy principles have long been recognized as necessary for ensuring the judiciary’s adherence to the First Amendment’s command that government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The United States Supreme Court has noted that the First Amendment’s Free Exercise and Establishment Clauses mandate “a spirit of freedom for religious organizations, an independence from secular control or manipulation—in short, power to decide for themselves, free from state interference—matters of church government as well as those of faith and doctrine.” Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952).
In Kirby, the Kentucky Supreme Court explained that the ecclesiastical abstention doctrine “is primarily interested in preventing any chilling effect on church practices as a result of government intrusion in the form of secular courts.” To avoid that chilling effect, courts should decline to exercise jurisdiction when the resolution of a dispute would require the judge to consider a “question of doctrine, discipline, ecclesiastical law, or rule, or church government.” The court’s decisions in Kirby, Kant and St. Joseph suggest that religious autonomy principles may require judicial abstention even in disputes that appear, at first blush, to be susceptible to judicial resolution on the basis of “neutral” (i.e., non-religious) principles.
The Ecclesiastical Abstention Doctrine
In St. Joseph, the Kentucky Supreme Court formally recognized and adopted the ecclesiastical abstention doctrine (also known as the religious autonomy doctrine), which requires courts to abstain from deciding any dispute that would require a judge to choose who should lead a church, synagogue or mosque, or to mandate how such entities should be governed. This rule applies with equal force to religiously-affiliated organizations that are not houses of worship, such as hospitals, children’s homes, and educational institutions.
The St. Joseph dispute arose when some of the organization’s members called for a vote, during the annual members’ meeting, on a resolution that would amend the bylaws and replace its trustees with a slate of new trustees. After the members approved the resolution by a wide margin, the old trustees sued the new trustees in the Jefferson Circuit Court, claiming that the new trustees’ election was invalid because the meeting and the voting procedures did not comply with the organization’s bylaws. In their prayer for relief, the old trustees requested injunctive relief that would prohibit the new trustees from holding themselves out as members of the board and restore the old trustees to their former positions.
The new trustees moved to dismiss the suit on religious autonomy grounds, arguing that the court’s involvement in the dispute would place the court it in an untenable position: choosing which set of individuals was entitled to oversee the organization’s implementation of its religious mission. Such a situation, the new trustees argued, would violate both of the First Amendment’s Religion Clauses: it would use state power to establish one set of trustees as the organization’s leaders, and the court’s involvement would infringe upon the members’ free exercise of their religious convictions without state interference.
The circuit court denied the defendants’ motion, reasoning that the case’s outcome would likely turn on a straightforward interpretation of the organization’s bylaws, which were secular in nature and susceptible to interpretation without consideration of religious principles. In response to the denial of their motion to dismiss the case, the new trustees filed an original action in the Court of Appeals, seeking a writ of mandamus requiring the circuit court judge to dismiss the case for lack of subject matter jurisdiction. The Court of Appeals denied the new trustees’ writ petition, concluding that because the bylaws could be interpreted by so-called “neutral principles of law,” there was no risk that the court would wade into religious matters.
The new trustees appealed the case to the Kentucky Supreme Court, which issued an opinion that substantially re-wrote the law governing autonomy for religious organizations. Writing for a unanimous court, Justice Minton affirmed the Court of Appeals’ denial of a writ, but on different grounds, concluding that the ecclesiastical abstention doctrine “does not divest our courts of subject-matter jurisdiction to hear cases they are otherwise authorized to adjudicate.” Instead, the court held that the doctrine is to be applied as an affirmative defense. The court acknowledged that its decision marked a departure from precedent which had held that “secular courts have no jurisdiction over ecclesiastical controversies.” Marsh v. Johnson, 82 S.W.345 (Ky. 1935). The court also noted that its decision brought Kentucky into line with the majority of jurisdictions holding that ecclesiastical abstention is an affirmative defense (or, in some states, a question of justiciability) rather than a subject-matter bar to jurisdiction.
After St. Joseph, the party asserting the ecclesiastical abstention affirmative defense bears the burden of satisfying a two-part test by proving (1) that the organization’s “mission is marked by clear or obvious religious characteristics,” and (2) that the lawsuit presents an issue whose resolution is “dependent on the question of doctrine, discipline, ecclesiastical law, rule, or custom,” or that the lawsuit presents an issue that would have an impermissible impact on the organization’s internal governance.
This last topic—whether a court’s resolution of a dispute would have an impermissible impact on a religious organization’s internal governance—is often the most vexing. It is relatively easy for a court to foresee when a case’s resolution might require the judge to make in impermissible interpretation of “religious doctrine, discipline, ecclesiastical law, or rule.” By contrast, it may be difficult to ascertain, at the outset of litigation, whether a dispute’s resolution would have a meaningful impact on the religious organization’s members’ freedom to govern themselves without state interference. The Kentucky Supreme Court suggested that the plaintiff’s prayer for relief, rather than the causes of action asserted in his or her complaint, may be more important to a court’s determination of whether it should exercise jurisdiction over a dispute with “internal governance” implications.
In characterizing ecclesiastical abstention as an affirmative defense, the court established a procedural parallel between its operation and the invocation of governmental immunity. After St. Joseph, a religious organization is entitled to seek interlocutory appellate review immediately following a trial court’s denial of a motion dismiss on ecclesiastical abstention principles. With that procedural tool in hand, there is no need for a party to take the extraordinary step of petitioning for a writ of mandamus.
The Ministerial Exception
Eight months prior to its adoption of the broader ecclesiastical abstention doctrine in St. Joseph, the Kentucky Supreme Court adopted the ministerial exception, which applies the broader abstention principle by prohibiting courts from adjudicating some employee suits against religious employers. Federal courts most frequently apply the ministerial exception to employee suits asserting claims for violations of Title VII, the ADA, the ADEA, and other civil rights statutes. The exception rests on the idea that the state, in enacting and enforcing its civil rights laws, cannot restrict a religious organization’s freedom to select its ministers (and others who are responsible for espousing the tenets of the faith) without infringing on the organization’s members’ constitutional right to free exercise of their religion.
In Kirby and Kant, two former professors sued the Lexington Theological Seminary on claims of breach of contract, breach of implied covenants of good faith and fair dealing, and unlawful discrimination under the Kentucky Civil Rights Act. The contract-related claims were premised on the plaintiffs’ contention that the Seminary’s termination of their employment violated the faculty handbook’s procedures for termination of tenured faculty members. The Seminary moved to dismiss the professors’ claims, arguing that a court could not adjudicate the plaintiffs’ claims without infringing upon the Seminary’s right to restructure itself so that it could continue to carry out its religious mission—namely, the training of training and educating future ministers.
The trial court granted the Seminary’s motions to dismiss, and the Court of Appeals affirmed. On appeal, the Kentucky Supreme Court formally adopted the “ministerial exception,” largely following the reasoning of the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S.Ct. 694 (2012). To determine whether the ministerial exception could apply in a particular case, courts should apply a two-part test: (1) is the employer a religious institution; and (2) is the employee a “minister”? The court found that the Seminary is a religious institution without much trouble, relying on facts about its financial support and affiliation with the Disciples of Christ denomination, its bylaws and governing structure, and the fact that its mission is to train Christian ministers.
With respect to the Second part of the test, the court concluded that one of the two plaintiffs (Kirby) was a ministerial employee because his responsibilities required him to be actively involved in the promotion of the Seminary’s mission. The court also adopted, and then expanded on, the various factors that Hosanna-Tabor called on courts to consider when determining whether an employee was a “minister.” Justice Minton, writing for a unanimous court, aligned Kentucky’s approach with the view of Justice Alito, whose opinion “shares our concern about the potential danger of hyper-focusing on the title given to an employee to the detriment of religions who do not employ the term minister.” What matters, in the end, is “the link between the employee’s title or conduct and the actual tenets of the religious institution.”
Having determined that Kirby qualified as a ministerial employee, the court next examined each of his three claims to ascertain whether the ministerial exception required judicial abstention. The court concluded that Kirby’s race discrimination claim must be dismissed, because enforcement of the Kentucky Civil Rights Act in this context would “deprive the church of control over the selection of those who will personify its beliefs.” In contrast, Kirby’s breach of contract claims could proceed, because the faculty handbook’s restrictions on the Seminary’s power to terminate its faculty members’ employment emanated from the Seminary itself, and “in no way constitutes a state-imposed limit upon a church’s free exercise rights.”
In contrast to its holdings in Kirby, the court found that the Second plaintiff (Kant) was not a ministerial employee because his responsibilities at the Seminary did not require him to be actively involved in promoting the Seminary’s mission. That being the case, the ministerial exception did not preclude the trial court from adjudicating any of his claims against the Seminary (including civil rights claims, had he asserted any).
With these three decisions, the Kentucky Supreme Court substantially re-wrote the Commonwealth’s law of religious autonomy abstention in less than a year. In the wake of St. Joseph, Kirby and Kant, attorneys now have considerably more guidance for the assertion and application of these concepts than ever before. The doctrinal shift, however, also creates new traps for the unwary. For one, now that Kentucky treats these abstention doctrines as affirmative defenses rather than jurisdictional bars, it is imperative for attorneys representing religious organizations to assert them at the outset of litigation to avoid an inadvertent waiver of the defense. Attorneys also must take care to develop a factual record that is sufficient for a trial court to make the requisite findings for the application of the affirmative defenses.
Disclosure: The author was part of the legal team representing the Society in the St. Joseph case. Some of the author’s colleagues represented the Seminary in the other two cases, but the author was not personally involved in those cases.