Doing God's Work?
~Maryland Court of Appeals will review application of the
ministerial exception to religious employees~
On October 3, 2005, the Maryland Court of Appeals granted certiorari in Archdiocese
of Washington v. Moerson. In Moerson, the Circuit Court and Court
of Special Appeals issued conflicting decisions on whether the "ministerial
exception" to Maryland's employment laws applies to an organist's claim against
his former employer.
According to established precedent (Presbyterian Church v. Hull Memorial
Presbyterian Church), the "free exercise" clauses to the United States
and Maryland Constitutions create a zone of autonomy for religious organizations.
The church autonomy doctrine deprives civil court of subject matter jurisdiction
to review matters involving church governance and doctrine. However, the
First Amendment is no impediment to a civil court's jurisdiction when it
can resolve a Church's conflict by "neutral principles of law" without examining
its religious doctrine (Maryland and Virginia Eldership of the Churches
of God v. Church of God at Sharpsburg, Inc.).
As applied to statutory or common law employment claims, the church autonomy
doctrine bars a civil court from reviewing a church's employment decisions
regarding its ministers (hence, the phrase "ministerial exception."). This
is so because the "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 to the world at large." (Rayburn v. General
Conference of Seventh Day Adventists). But when a matter does not involve
a minister, a civil court may resolve employment disputes, even if they are
within a Church, if the employee provides a purely secular service for the
church (as in the 1982 decision EEOC v. Pacific Press Publ'g Ass'n,
when the Civil Rights Act was applied to an editorial secretary in a church
publishing house). Defining the line between ministerial and secular is often
the issue in these cases as it is in Moerson.
The Maryland Court of Special Appeals first recognized the ministerial exception
in 1996's Downs v. Roman Catholic Archbishop of Baltimore. Stephen Michael
Downs, a former candidate for priesthood, sued the Roman Catholic Archbishop
of Baltimore, alleging that the Church made defamatory statements against him,
ruining his reputation in the community and preventing him from becoming ordained
as a priest. Mr. Downs alleged that a church representative made statements
that were "false and defamatory respecting [Mr. Downs's] honesty, reliability,
integrity, and specifically, asserting sexually-motivated conduct toward certain
staff members of [a church]." The Court of Special Appeals, affirming the lower
court, held it was without subject matter jurisdiction to review Mr. Downs's
In 2001, the Maryland Court of Appeals confirmed the central holding of Downs in Montrose
Christian School Corp. v. Walsh. It involved a private religious school
affiliated with, and operating alongside, the Montrose Baptist Church in
Montgomery County, Maryland. After a change in the Church's leadership, the
school terminated all of its employees who were not members of the Montrose
Baptist Church, with the exception of two janitors. Former employees filed
suit against under Montgomery County's anti-discrimination ordinance, alleging
employment discrimination. The principal issue was whether a religious school
could demand that its employees be members of a particular religion. The
ordinance permitted religious organizations to insist an employee be a particular
religion only if he or she "perform[ed] purely religious functions."
In reaching the conclusion that the phrase "purely religious functions" did
not allow religious organizations sufficient freedom to choose their employees,
and thereby violated the free exercise clause, the court analyzed the ministerial
exception's scope. According to the Court, the exception applies to any employee
whose "primary duties" consist of teaching, spreading the faith, church
governance, supervision of a religious order or supervision or participation
in religious ritual and worship. Application of this portion of the Court's
opinion is a primary issue in Moerson.
In 2003, the Court of Special Appeals issued Bourne v. Center on Children,
Inc. The plaintiff in Bourne was a former church pastor who sued
his former church employer, several affiliate entities and several church
leaders. A citizen of Trinidad and Tobago, he alleged that the defendants
had breached their agreement to help him solidify his immigration status.
He also claimed that the defendants made false statements to the church congregation,
in his case about his questionable use of paid vacation time.
The Court of Special Appeals affirmed the Circuit Court's dismissal of all
of Mr. Bourne's claims. According to the Court, no matter how Mr. Bourne framed
his complaints, "the Court would have to consider whether appellant was properly
performing his job."
At issue in Moersen is whether the ministerial exception applies to
a former church organist's common law tort claims. Mr. Moerson alleges he worked
as an organist at a Catholic Church in Montgomery County. (He subsequently
filed suit in Prince George's County). During his most recent employment term,
he alleges that a written employment contract governed his employment. His
duties were to provide music to the Church's congregation and choirs. The contract
also required him "[t]o support the Gospel message through the music ministry."
In September 2001, Mr. Moersen claims he informed the then-Pastor, Father
Amey, that he had suffered sexual abuse at the hands of a choirmaster from
1958 to 1964. According to Mr. Moersen, in response to these disclosures, Father
Amey offered to help Mr. Moersen pay for counseling. After he reported the
alleged abuse to Father Amey, Mr. Moersen alleged "his employment situation
began to deteriorate." On February 17, 2002, Father Amey notified Mr. Moersen
that he could no longer serve as the Church's organist.
Relying on Montrose Christian School, Circuit Judge Steven Platt granted
the Church's motion for summary judgment. On appeal, in an unpublished opinion,
the Court of Special Appeals reversed, holding that Mr. Moerson's claims did
not fall within the ministerial exception because he was "just an organist." He
was neither a choir director nor a part of the ministry to spread the Catholic
religion. Therefore, the Court held he was a secular employee and allowed his
claims to proceed.
Moerson presents the Court of Appeals with an opportunity to define
exactly who is a ministerial employee. The Court's decision should go a long
way in informing practitioners and judges when, if ever, our Courts have subject
matter jurisdiction to review a religious worker's employment claims.
James E. Rubin is a Partner in the law firm of Farber
Rubin, LLC, where he concentrates in labor and employment law matters.