dolquist v. heartland presbytery and ministerial exception

The preceding essay described the long-established 'minister exception,' which is a court-made doctrine implementing the First Amendment prohibition on Congress'/government's burdening the free exercise of religion. That is, the Free Exercise Clause protects the power of religious organizations "to decide for themselves, free from state-interference, matters of church government as well as those of faith and doctrine." The legal question, as the District Court of Kansas framed it in this case, was to what extent the application of Title VII's discrimination provisions (in this case sex discrimination) entangle the state in the practice of religion to such an extent that it violates the First Amendment to the US Constitution. In contrast to the decision reached by the Tomic court, the Dolquist court allowed a claim for sexual harassment and retaliation to go forward when a female minister alleged harassment from another minister (the choir director) in her congregation. Here are a few facts.

Dolquist v. Heartland Presbytery, 342 FSupp 2d 996 (2004)

Dolquist was pastor of the Leawood Presbyterian Church (KS) from 1995-2001. In her complaint she alleged:

"Miller sexually harassed plaintiff. He repeatedly made offensive, inappropriate comments of a sexual nature, and engaged in inappropriate conduct of a sexual nature including kissing and touching plaintiff in an offensive manner. Miller's conduct was unwelcome, hostile and abusive and affected the terms and conditions of plaintiff's employment. Plaintiff complained about Miller's behavior, but Leawood Presbyterian did not investigate her claims or take remedial action."

Instead of helping her out, the church, according to Dolquist's complaint, did many things to try to retaliate against her for bringing a complaint against Miller. Of the ten things she enumerates, a few were: (1) threatening to terminate her employment; (2) creating a hostile work enviornment; (3) falsely accusing her of being in a relationship with a church member, etc. The question for the court was whether Dolquist stated a claim under Title VII for sexual harassment or whether the ministerial exception would be invoked on the church's behalf by the court.

Legal Discussion

Most of the authority cited by the court would have precluded a sexual harassment claim. One example was an earlier 10th Circuit opinion which held:

"the right to choose ministers is an important part of internal church governance and can be essential to the well-being of a church, 'for 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,'" Bryce v. Episcopal Church, 289 F3d 648, 656 (10th Cir., 2002).

Noteworthy for the court, however, was the observation that the court decided the 2002 case on the basis of the "religious doctrine" exception and not the ministerial exception. Nevetheless, nearly all the circuits that addressed the issue have found that the First Amendment protects churches from various employment claims by ministers.

Yet, there was one exception, and the Dolquist court follows its lead. I will discuss that case in detail in the next essay, but suffice it to say that the court followed the 9th Circuit in holding that a sexual harassment claim need not implicate either church doctrine or church management of its personnel and may go forward.

But we need to be more specific about what the court actually held. It reviewed several cases which put rather strict limits on what kind of things a church could or couldn't do under the ministerial exception. The church could make ministerial hiring and firing decisions; the church could make unreviewable decisions regarding the minister's pay, benefits, duty assignment, tenure, promotion, disability accommodation and job resources. Why? The court cited the Fifth Circuit's argument with approval:

"The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern. Just as the initial function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selection. It is unavoidably true that these include the determination of a minister's salary, his place of assignment, and the duty he is to perform in furtherance of the religious mission of the church," McClure v. Salvation Army, 460 F2d 553, 558-59 (5th Cir., 2002).

Conclusion

But the court said that none of these powers of the church seems to implicate the issue of sexual harassment. Following the lead of the Elvig case (next essay), the court decided that sexual harassment claims might very well not implicate the traditional ministerial exception subjects and thus be susceptible of judgment by the court. As the court said: "Such issues (i.e., surrounding sexual harassment) on their face, do not involve defendant's right to select clergy or decide matters of church government, faith and doctrine." The court also concluded that a retaliation claim could go forward, even though it wasn't framed very clearly in the complaint or, alternatively said, little evidence for each of the instances of that claim was put forward.

Thus, we have a split between the a district court in the 10th Circuit and many other Circuits. If the Kansas District Court was the only one that let a claim of sexual harassment against a minister by a minister to go forward, little more than passing attention would be given to it. But when you combine it with the holding of the Elvig case, we have a real split developing. Let's turn to the Elvig case now.

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