Church and ministry committees urged not to let fear of liability inhibit their work
Written by Leigh Hunt Greenhaw
January - February 2001
All too often "Church and Ministry" committees of UCC Associations are afraid to act on sensitive issues because they are afraid of being sued.
In the course of a committee's work it may wonder if it can ask for information from a seminary about an in-care student's performance. Or, it may deny ordination, licensing or standing to a candidate and want to communicate its reasons to another Association's Church and Ministry Committee when it considers the same candidate. Or, it may grant a leave of absence to a clergy person for sensitive reasons, then consider communicating its reasons to a local congregation from another Association that is considering calling that person.
In each of these examples, and others like them, fear of possible legal liability should not, and need not, unduly inhibit a committee's faithful work for the church. Indeed, the constitutional framework in which it acts encourages it to work explicitly and forthrightly as the church.
This is because of the Religion Clauses of the First Amendment of the United States Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
The first clause guarantees that government will not establish a religion, the second that it will not prohibit citizens' freedom in exercising their religion. Together they are the basis for judicial deference to the functions of Association Church and Ministry Committees: the doctrine of church autonomy.
Church autonomy means autonomy of the church vis a vis the government, particularly the courts. The Religion Clauses require that civil authorities forgo deciding questions that are essentially religious in order to avoid entanglement and interference in religion.
Questions about what?
Belief, such as doctrine or theology;
Worship, such as religious meetings, practices or rituals;
Clergy selection, appointment, discipline and removal;
Church polity or internal governance.
Non-establishment of religion requires that the courts stay out of these types of questions to avoid governmental preference for a religious group or for religion in general. Free exercise of religion requires the courts to allow religious associations room to function and maintain their identities and institutions separately from the government. Therefore, in a lawsuit challenging a church decision, courts will often rule that the church's determination will stand, without judicial review, or that the judicial review will be limited, due to a First Amendment "privilege."
One area that goes to the very essence of religious autonomy is a church's selection of its clergy. This includes decisions by a church or denominational agency as to the qualifications of a minister. Here the courts are particularly reluctant to intervene, preferring to leave such decisions to the religious body.
This means that Association Church and Ministry Committee work, decisions regarding in-care status, ordination, licensing, standing, discipline and/or removal, is at the very heart of the activities protected by the Constitution under the doctrine of church autonomy.
Does this mean a church can fire a minister, willy nilly? No, churches are bound by their employment contracts as are others, and courts will enforce them. Usually, however, only fraud and collusion motivated by bad faith for secular purposes should get the court involved in a clergy selection or termination dispute. Claims of racial or gender discrimination may, but have not clearly yet, overcome the privilege. Church bodies also are bound by their own rules, and courts also may enforce the procedures that a church has adopted, while refraining from ruling otherwise on the merits of the dispute.
Polity makes a difference. The courts are most deferential to hierarchical churches with clear lines of authority and established adjudicative structures for making decisions: churches not like the UCC with its congregational polity. The idea is that if church procedure and structure are not clearly defined, an injured person either may have not agreed to it or may be left without any recourse if the courts refuse to take the case.
This really isn't true of the UCC, even though we are not very hierarchical and we do leave the calling of ministers to local congregations. Our denomination does have a polity, a structure, and procedures for credentialing and disciplining clergy. The UCC Constitution and By-Laws delineate the responsibilities of Conferences and Associations, giving responsibility for credentialing and disciplining of clergy to Associations. The "Manual on Ministry," if an Association adopts it, and an Association's own governing documents should provide the procedures and criteria.
To exercise the autonomy that our country's Constitution gives us, UCC Association Church and Ministry Committees need to self-consciously and articulately use our structures, procedures and criteria when they make their decisions and when they communicate them.
As with any judge-made doctrine, the contours of church autonomy are not always clear and continually change as new facts produce new cases. However, the following guidelines fit the doctrine and minimize the risk of liability for Association Church and Ministry Committees:
Make it clear that the communication/action is in the course of your duties as a member of an Association Church and Ministry Committee of the UCC;
Make sure what you communicate is truthful, "not knowingly false," and made in good faith for the carrying out of your responsibilities;
Follow your Committee's stated procedures and apply its stated criteria; and
Relate the communication/action to authentic concerns grounded explicitly in theology or ecclesiology, to fitness for ministry within the understanding of the UCC and of your Association.
Don't let avoidance of liability be your guide. Be bold to speak religiously and to act "as church." When you do so, you protect against liability. More importantly, you exercise and thereby strengthen the case for your First Amendment privilege.
Leigh Hunt Greenhaw is Lecturer-in-law at Washington University Law School in St. Louis. A member of Evangelical UCC in Webster Groves, Mo., she represents the Missouri-MidSouth Conference on the Board of Local Church Ministries in the UCC's national setting. This article is excerpted from a speech delivered at a national Church and Ministry Consultation held last October at Eden Theological Seminary in St. Louis.