Court of Appeals: 2010-CA-001798-MR
Kant v. Lexington Theological Seminary, 2012-SC-000502-DG, April 17, 2014
Court of Appeals: 2011-CA-000004-MR
There are two similar cases decided in tandem, because of their timing and common issues. Both plaintiffs were tenured professors at the Lexington Theological Seminary and both were terminated from employment during a cost-cutting restructuring of the seminary made necessary by external economic conditions. Each of the plaintiffs sued separately. Both plaintiff-appellants Kant and Kirby claimed breach of contract. One difference between the two cases is that Kirby also claimed race-based discrimination in his action (KRS 344.040). The Circuit Court in each action granted summary judgment for defendant seminary. The Court of Appeals affirmed the dismissal of each action based upon the the ecclesiastical abstention doctrine and the ministerial exception.
On discretionary review, the Kentucky Supreme Court reversed the two cases and remanded each to the Circuit Court for further proceedings. Relying upon Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012), the court explicitly adopted the ministerial exception as applicable to employment claims, "especially discrimination claims . . . asserted against a religious institutional employer by an employee who is directly involved in promulgating and espousing the tenets of the employer's faith." The court distinguished between the purely internal disputes that sometimes erupt in religious organizations and those more secular disputes that may arise as a religious organization does business in the world.
"Secular courts do not have jurisdiction to hear disputes over church doctrine. But courts do have jurisdiction to hear and resolve employment disputes, contract claims, tort claims, or similar. And that authority is not lost as a result of the ministerial exception."
Ministerial employees do have a special status as the public face of a religious institution's internal religious beliefs and organizational purpose. The court stated, "the ministeria1 exception is a judicially created 'principle whereby the secular courts have no competence to review the employment related claims of ministers against their employing faith communities.' . . . The Constitution demands recognition of the ministerial exception, so we now incorporate the ministerial exception into our jurisprudence."
The ministerial exception is an affirmative defense that must be pleaded and proved. it is not a jurisdictional bar to the action. This means, of course, that the exception may be waived through intention or inaction.
"We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is 'whether the allegations the plaintiff makes entitle him to relief,' not whether the court has power to hear [the] case."
"Our case law has long held that 'whether a particular defendant is protected by official immunity is a question of law[.]' Accordingly, we hold the determination of whether an employee of a religious institution is a ministerial employee is a question of law for the trial court, to be handled as a threshold matter. Certainly, it is important "that these questions be framed as legal questions and resolved expeditiously at the beginning of litigation to minimize the possibility of constitutional injury" and provide the litigants with a clear understanding of the litigation's track. The religious institution asserting the ministerial exception must bear the burden of proof to show the employee was, indeed, a minister."
The application of the ministerial exception requires two main inquiries:
1) is the employer a religious institution, and
2) is the employee a minister.
Clearly, each of these involve factual determinations. Although framed as legal questions, any substantial conflict in the evidence on the issues of the institution being "religious" or the employee being a "minister" may seriously impair the court's ability to expeditiously resolve the matter short of trial.
"[T]he scope of 'religious institution' is not so narrow that only traditional faith communities qualify. Across the federal circuits, the ministerial exception has been applied to religiously affiliated hospitals, schools, and corporations because they were sufficiently within the understanding of "religious institution." An entity, allegedly religiously affiliated, will be considered a 'religious institution" for purposes of the ministerial exception "whenever that entity's mission is marked by clear or obvious religious characteristics.' "
There are numerous factors to be considered in determining the religious status of the institution, including its funding sources, its bylaws and governing structure, if officers and directors are personally affiliated with a particular religious movement and the primary activity or organizational purpose of the institution, just to name a few.
Also, regarding the ministerial status of an employee, the court stated, "We are loath to adopt a categorical rule regarding Seminary professors or any other class of individuals who may be considered ministers under the ministerial exception. And, like the United States Supreme Court, we do not adopt a 'rigid formula' for deciding if an employee is a minister."
In Hosanna-Tabor, supra, the U. S. Supreme Court offered four generic factors to consider when determining a ministerial employee:
(1) the formal title given by the religious institution,
(2) the substance reflected in that title,
(3) her own use of the title, and
(4) the important religious functions performed for the religious institution.
The Kentucky Supreme Court elaborated upon this.
"When considering 'the formal title given,' a trial court should weigh whether the title is inherently, exclusively, or primarily religious. The consideration of the 'substance reflected in the title' should include the duties and responsibilities associated with the title. The trial court, in looking to the associated duties and responsibilities, may look at whether they carried substantial religious significance, involved supervision or participation in religious ritual and worship, or spread the tenets or doctrine of the faith.'[The employee's] own use of the title' should include consideration of whether the position involved, expected, or required proselytizing on behalf of the religious institution. Or did the employee use the title in a manner that would indicate to the members of the particular faith community or to the public that he was a representative of the religious institution authorized to speak on church doctrine? Finally, consideration of 'the important functions performed for the religious institution' should involve a review of whether those functions were essentially liturgical, closely related to the doctrine of the religious institution, resulted in a personification of the religious institution's beliefs, or were performed in the presence of the faith community."
"According to the court in McClure v. Salvation Army,[460 F.2d 553 (5th Cir. 1972).] the 'relationship between an organized church and its ministers is its lifeblood' because the minister 'is the chief instrument by which the church seeks to fulfill its purpose.' And 'law should not be construed to govern the relationship of a church and its ministers.' . . . Although ministerial it is in name, the exception, as McClure illustrates,has been applied to lay employees, seminary professors, hospital workers, musicians, and many others."
"[B]oth the Free Exercise and Establishment Clauses of the First Amendment. . . bar the government from interfering with the decision of a religious group to fire one of its ministers. . . the reasoning behind the church's decision is essentially irrelevant under the ministerial exception."
"The existence of the ministerial exception is not purposed on the protection of a 'church's decision to fire a minister only when it is made for a religious reason' but, instead, to 'ensure that the authority to select and control who will minister to the faithful . . . is the church's alone.' "
"we do not hold the ministerial exception to operate as a bar to Kirby's contract claims against the Seminary. The contract claims involve solely the Seminary's willing participation, within a religious context, in a contractual transaction between the two parties."
Standard of review
"Summary judgment is only to be granted 'to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.' "
"Sumary judgment is not intended as a substitute for trial and should be cautiously applied. Instead of deciding an issue of fact, the trial court reviews the evidence to determine whether a real issue of fact exists. And in performing this review, the trial court must view the evidence through a lens colored in favor of the party opposing summary judgment."
"Appellate review of a summary judgment involves only legal questions and a determination of whether a disputed material issue of fact exists. Consequently, we ned not defer to determinations by the lower courts and we are free to operate under a de novo standard of review."