The year of the ecclesial abstention doctrine

We’ve written more about the ecclesial abstention doctrine this year than I have in my entire career in religious journalism.

Increasingly, secular courts are appealing to this doctrine to dismiss — or avoid — cases that present thorny debates among religious adherents, especially in Christian churches. The latest use of this doctrine should alarm us, however, because it allows churches to escape accountability for sexual abuse.

The ecclesial abstention doctrine is a well-worn legal premise that secular courts may not and should not interfere in “ecclesial” matters that involve theology and doctrine. For example, it should be obvious that the First Amendment prohibits government from intervening in disputes within religious bodies about things such as worship style, the doctrine of the Trinity or even the qualifications of a pastor.

But there are some things that don’t require theological training to sort out and should not be off limits to secular courts. Among those is sexual abuse. This should be a matter that rises above theology and doctrine to be considered on the merits of established law. There is no Christian denomination in America with a theology that condones child sexual abuse. And the laws we have against such crimes should rise above any debates about theology.

Now, however, the notorious case of former Dallas megachurch pastor Robert Morris has entered territory that ought to be considered absurd.

Morris, founding pastor of the multi-campus Gateway Church, has admitted to sexually abusing Cindy Clemishire when he was a traveling evangelist and she was a child. That earned him a prison sentence and a place on the Sex Offender Registry.

However, in a separate civil lawsuit brought against Morris and Gateway Church — who for years allegedly denied the abuse claims were real — a state appeals court judge has refused to consider the claims mainly because of the ecclesial abstention doctrine.

Here’s the summary from WFAA News in Dallas: “The appeals court ruling sides with Robert Morris’ and Gateway Church’s arguments that the courts do not have jurisdiction to rule on the defamation claims because it would require them to violate the ecclesiastical abstention doctrine that prevents the courts from delving into church discipline and ecclesiastical government.”

The Texas Fifth District Court of Appeals posted two opinions Aug. 20 that affirmed motions by Gateway Church elders John Willbanks, Kenneth Fambro and Dane Minor that the defamation case against them should be dismissed.

“Plaintiffs did not sue Gateway over the tragic abuse itself, but over the church’s statements about Robert’s misconduct,” said the church’s attorney, Ron Breaux. “Those statements were made by a church seeking to shepherd its congregation and, as the court held, are therefore protected by the First Amendment.”

“I believe James Madison would like a word here.”

Just let that one sink in for a minute. Gateway Church’s attorney claims the allegedly defamatory statements made about a survivor of clergy sexual abuse are protected by the First Amendment. I believe James Madison would like a word here.

Clemishire’s attorney, Republican state Rep. Jeff Leach, spoke truth in response: “The ruling issued late Wednesday by the Texas Court of Appeals has deeply troubling consequences for survivors and victims of childhood sexual abuse. If allowed to stand, it effectively grants religious organizations sweeping immunity from civil accountability — even when they are alleged to have knowingly concealed, enabled or protected child sexual predators — simply because those actions occurred within a religious institution.”

Leach and Clemishire are seeking relief from the Supreme Court of Texas.

One other wrinkle you need to know about the defamation case: While the sexual abuse happened long before Morris founded Gateway Church, the alleged coverup of that abuse happened at Gateway and by the pastor and his leadership.

Breaux, the church’s attorney, continues to insist there was no coverup, despite evidence to the contrary: “As the court’s opinion confirms, this case was never about Gateway. While Gateway grieves and laments Robert’s child sexual abuse of Cindy, that abuse happened 20 years before Gateway was founded. Its current elders did not know of Robert’s crimes until Cindy told her story, at which point they immediately conducted an investigation and acted to ensure that no one complicit in hiding Robert’s past remained in church leadership.”

The timing and nature of such an investigation are contested matters here. As is Clemishire’s contention that Morris and church elders defamed her by not believing her story.

These are not debatable theological matters. It should not require a seminary degree to understand what’s at stake here.

As someone who loves and promotes the First Amendment, I can affirm without hesitation that the legal peril for sexually abusing a child and then covering up that abuse to avoid losing church members and offering money overrides theology. Yes, this is a theological matter. But more importantly, it’s a legal matter.

“It should not require a seminary degree to understand what’s at stake here.”

Under the appeals court’s logic, a church member could enter Sunday morning worship, shoot the place up and kill people and claim his actions were motivated by theology. And then the courts could not convict the gunman of murder because they can’t adjudicate theological matters.

In this wild example, we see that secular laws against murder take precedence over theological debates.

By the appeals court’s logic, all you have to do to avoid prosecution for a crime is to claim you were theologically motivated in your actions.

And lest you think the Gateway case is an isolated use of the ecclesial abstention doctrine, here are two other recent cases where courts have — wrongly, in my view — cited the doctrine to avoid meting out justice.

• Will McRaney’s case against the SBC North American Mission Board. NAMB President Kevin Ezell put pressure on the Baptist Convention of Maryland and Delaware to fire McRaney as executive director because McRaney crossed Ezell. McRaney argued Ezell and NAMB defamed him in the process since he was not employed by NAMB. After eight years of legal ups and downs, a court finally ruled this was a doctrinal matter that could not be considered by the court. McRaney has rightly warned this demolishes the Baptist doctrine of autonomy.
• Members of Second Baptist Church of Houston sued the church and its key leaders over changes made to governing documents they contend happened without proper notice to members and in violation of state law governing nonprofit entities. The Texas Business Court threw out most of the case because the church leaders who took control of assets and governance said they were following the model of a “biblical church.” The case really is about Texas nonprofit law, not about “biblical” anything.

On the other hand, some courts have gotten this right lately:

• When Preston Garner and his wife, Kellie Garner, sued the SBC Executive Committee for wrongly identifying Preston Garner as a sexual abuser and costing him a job as a result, the Tennessee Court of Appeals did not buy the ecclesial abstention doctrine as a reason to avoid a trial. This was not about theology, the court said.
• When members of McLean Bible Church in Virginia sued their church and pastor over changes to how church leaders are elected, the Virginia Court of Appeals said the case is about operation of a state-recognized nonprofit entity that does not involve theological matters to decide.

The bottom line is that federal and state courts need some refreshers on the religion clause of the First Amendment.

 

Mark Wingfield serves as executive director and publisher of Baptist News Global. He is the author of Honestly: Telling the Truth About the Bible and Ourselves.