United States: Kentucky Supreme Court Re-Writes Abstention Rules For Suits Involving Religious Organizations

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).

Conclusion

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.

Published in Louisville Bar Association's Bar Briefs, May 2015

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.