At my panel at the Federal Bar Council retreat this past weekend, someone from the audience asked the following question. After Hosanna-Tabor, last term’s Supreme Court decision endorsing the ministerial exception to the employment discrimination laws, what happens to tort claims by clergy against their churches? For example, what if a priest sues his church for defamation? Would Hosanna-Tabor bar such an action?

It turns out this is a real, live case. The New York Times reports that a defrocked Catholic priest, Charles Kavanaugh, has sued the Archdiocese of New York for defamation. Kavanaugh alleges that the archdiocese libeled him when it stated in a recent press release that a church tribunal had found him guilty of multiple counts of sexual abuse. Kavanaugh says this statement is untrue. The details aren’t really important here. The question is whether Hosanna-Tabor bars Kavanaugh’s suit.

The short answer appears to be no. The Hosanna-Tabor Court expressly declined to decide whether the ministerial exception barred “actions by employees alleging . . . tortious conduct by their religious employers.” So the question remains open. Would the logic of the ministerial exception bar a claim like Kavanaugh’s? It wouldn’t seem so. Kavanaugh does not seek to be returned to the ministry or even damages for wrongful dismissal. If he wins, a victory would have absolutely no effect on what Hosanna-Tabor says is the principal concern underlying the ministerial exception: a church’s ability to select those who will lead it and express its message.  Of course, if Kavanaugh’s claim turns on some matter of religious doctrine, for example, whether he was espousing authentic Catholic teaching, that would be different. Civil courts are not going to get entangled in that sort of dispute. But courts should be able to decide a straight-up defamation claim on neutral principles of law. I don’t think Hosanna-Tabor poses a problem here.

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