June 30, 2012 - LAW AND RELIGION FORUM

Thanks very much to Ron Colombo for his many stimulating posts in June. Ron may stay on for a short bit to finish up some last posts, and we hope to get him back again soon.

And it is a special pleasure to welcome Steven D. Smith, who will be posting with us for the next little while. Steve is one of the very most interesting, thoughtful, and insightful scholars of constitutional law and law and religion. He joins us from the University of San Diego School of Law, where he is the Class of 1975 Endowed Professor as well as co-Executive Director (with the great Larry Alexander) of the Institute for Law and Religion.

Among Steve’s many terrific books are:

The Disenchantment of Secular Discourse (HUP 2010)
Law’s Quandary (HUP 2004)
The Constitution and the Pride of Reason (OUP 1998)
Foreordained Failure: The Quest for a Constitutional Principle of Religious Liberty (OUP 1995)

His articles — many of which are listed here — all repay careful reading (one among many of my personal favorites is That Old Time Originalism)

A very warm welcome to Steve!

Readers may remember that in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court explicitly put to the side the question of the ministerial exception’s application to tort actions.

Here’s an interesting Florida appellate court case decided yesterday which describes some of the contours of the church autonomy doctrine in the context of relatively simple defamation and breach of fiduciary duty claims. The plaintiff joined the First Pentecostal Church of South Brevard, Inc. and he befriended the pastor at the time. The two developed a personal and professional friendship, and the pastor even sponsored the plaintiff to obtain a minister’s license in the greater Pentecostal church. At some point, however, the relationship soured when the pastor accused the plaintiff of being gay and published those accusations to the congregation, including to the plaintiff’s fiancée’s father.

Plaintiff filed a complaint for defamation and other causes of action and the defendant pastor moved to dismiss for lack of subject matter jurisdiction on the basis of the church autonomy doctrine. The lower court dismissed.

The Florida appellate court reversed. After finding that the church autonomy doctrine acts as a jurisdictional bar (rather than an affirmative defense…note that Hosanna-Tabor took a different view of the ministerial exception, and see also Howard Wasserman’s very good piece), the court held that the church autonomy doctrine did not shield an action by a minister of a church where there was no evidence that “the conduct in question had been undertaken ‘in furtherance of a sincerely held religious belief,’ and no claim that the church had failed to exercise control over its clergyman because of sincerely held religious beliefs and practices.” The First Amendment, the court concluded, “does not grant Myers, as pastor of FPC, carte blanche to defame church members and ex-members . . . . This claim can be properly adjudicated without implicating the First Amendment.”

The case is Bilbrey v. Myers, 2012 WL 2465242 (Fla. App. Dist. June 29, 2012).