Doing God's Work?

~Maryland Court of Appeals will review application of the ministerial exception to religious employees~

By James E. Rubin

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 claims.

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.