Wednesday, May 28, 2014
A while ago, I commented on a dispute then before the Kentucky Court of Appeals regarding the intersection of the ministerial exception to contract law. On appeal, the Kentucky Supreme Court has just weighed in, issuing a pair of decisions that take a nuanced approach to who is a "minister" for purposes of the exception and, perhaps more significantly, analyze the role of the exception when it's contract law -- not discrimination -- that is at stake.
The cases, Kirby v. Lexington Theological Seminary and Kant v. Lexington Theological Seminary both arose in the wake of financial problems at the Seminary resulting in the termination of tenured professors. The core claims in both actions were that the Seminary had violated the tenure rights of the professors as set forth in the Faculty Handbook. The Seminary's main response, looking to the Supreme Court's recent endorsement of the doctrine in Hosanna Tabor, was that the "ministerial exception" barred the suits. The application of that doctrine was especially counterintuitive on the case of Professor Kant, who was a Jewish scholar teaching at a Christian seminary.
The Kentucky Supreme Court had little difficulty in deciding that Seminary qualied as a religious institution able to claim the exception, but whether Kirby was a minister within it was "much more complicated." Nevertheless, and despite the fact that Kirby was not ordained, it found a constellation of facts pointing in that direction, including both his traching and participation in worship.
So far, so bad for Kirby, and, consistent with Hosanna Tabor, the court did affirm dismissal of his claim for racial discrimination.
However, it refused to dismiss Kirby's contract claim, reasoning (1) enforcement of contracts does not implicate concerns about government interference with religion and (2) the contract did not involve ecceliastical matters that would bar suit under Kentucky's "eccelesiastical abstention" doctrine. Roughly translated, the first principle recognizes the right of churches and other religious institutions to enter into contracts subject to the second principle, which forbids civil courts from resolving even contract disputes by deciding religious questions.
Given that the Seminary chose to circumscribe its right to discharge professors by granting them tenure, the court saw no question of government control of a church. And given that the Faculty Handbook permitted discharge of tenured professors only for cause related to their character or performance -- not for financial reasons -- there was no reason to abstain: "[W]hen the case merely involves a church, or even a minister, but does not require the interpretation of church doctrine, courts need not" abstain. Presumably, had the discharges been justified in terms of performance that implicated religious issues -- such as departures from orthodoxy in teaching -- the ecclesiastical abstention principle would have barred the suit.
As for Professor Kant, the court found him not to be a ministerial employee to begin with. Rejecting the view that all Seminary professors were necessarily ministers, it found that, unlike Kirby, Kant "did not participate in significant religious functions, proselytize, or espouse the tenets of faith" of his employer. Even though his teaching might have contributed to the overall mission of the Seminary, that was not enough to make him a minister. Further, while Kant's personal belief system -- he was a "practicing Jew" -- did not necessarily mean he was not a minister, the reality remained that his work was chiefly secular.
Despite not falling under the ministerial exception, the court considered whether Kentucky;s ecclesiastical abstention doctrine would nevertheless Kant's bar the suit, finding the analysis in Kirby controlling: essentially, that there was no religious question involved.