Suit Against Church for Negligent Retention of Pastor Can Move Ahead

 In Exum v. St. Andrews-Covenant Presbyterian Church, Inc., (NC App, Nov. 19, 2024), a North Carolina state appellate court held that claims for negligent retention, negligent infliction of emotional distress, and breach of fiduciary duty brought against a church do not need to be dismissed under the ecclesiastical abstention doctrine because they can be decided using neutral principles of law. Plaintiff and his wife attended St. Andrews-Covenant Church.  The church's pastor, Derek Macleod, entered a romantic relationship with plaintiff's wife. After plaintiff and his wife were divorced, Plaintiff sued the church and its parent bodies. The court said in part:

Exum alleges that St. Andrews-Covenant was negligent in allowing Macleod’s tortious conduct to occur because St. Andrews-Covenant knew or should have known that Macleod had engaged in similar misconduct in his capacity as a church leader in prior roles. ...

 “[T]here is no necessity for th[is] [C]ourt to interpret or weigh church doctrine in its adjudication of” Exum’s claims premised on alleged negligence in placing and retaining Macleod at St. Andrews-Covenant....  “It follows that the First Amendment is not implicated and does not bar” Exum’s claims against St. Andrews-Covenant....  As the Court in Smith [v. Privette] explained, a contrary holding “would go beyond First Amendment protection and cloak such [religious] bodies with an exclusive immunity greater than that required for the preservation of the principles constitutionally safeguarded.”....

Excluding Gender-Affirming Care from Governmental Insurance Coverage Violates Equal Protection

In Kadel v. Folwell, (4th Cir., April 29, 2024), the U.S. 4th Circuit Court of Appeals sitting en banc, in an 8-6 decision, held that an exclusion in North Carolina's state employee healthcare plan for treatment "in connection with sex changes or modifications" violates the equal protection clause. The majority held that "the coverage exclusions facially discriminate on the basis of sex and gender identity, and are not substantially related to an important government interest...." The majority held that the exclusion for "transexual surgery" in West Virginia's Medicaid program similarly violates the equal protection clause as well as the Medicaid Act. The majority in its 58-page opinion said in part:

[D]iscriminating on the basis of diagnosis is discriminating on the basis of gender identity and sex.  The coverage exclusions are therefore subject to intermediate scrutiny.  They cannot meet that heightened standard.

Judge Richardson, joined by Judges Wilkinson, Niemeyer, and Quattlebaum, and joined in part by Judges Agee and Rushing, said in part:

The Equal Protection Clause does not license judges to strike down any policy we disagree with.  It instead grants the states leeway to tailor policies to local circumstances, while providing a carefully calibrated remedy for truly illicit discrimination.  No such discrimination appears in these cases.  North Carolina and West Virginia do not target members of either sex or transgender individuals by excluding coverage for certain services from their policies.  They instead condition coverage on whether a patient has a qualifying diagnosis....

Judge Wilkinson filed a dissenting opinion, saying in part:

In the era of Roe, it was substantive due process. Now it is substantive equal protection. Make no mistake. The fundamental rights prong of equal protection is what is at play here, and while constitutionally mandating state-funded transgender rights will please some, it will politicize the courts in the eyes of all as assuredly as its substantive due process predecessor did....

Some States are reluctant to fund emerging treatments until the science can tell us more. Not only is the medical data conflicting, but there is a moral caution in this case as well. Self-righteous folly has long run through us all. The Tower of Babel toppled of its own hubristic weight. Yet still we moderns strive to bend nature to desire.

Judge Quattlebaum, joined by Judges Agee, Richardson and Rushing, filed a dissenting opinion, saying in part:

In order to conclude that no legitimate, non-discriminatory reasons support denying coverage for certain treatments of gender dysphoria, the majority abandons settled evidentiary principles. Properly accounting for the record, questions about the medical necessity and efficacy of such treatments linger. And those lingering questions support the states’ coverage decisions.

NPR reports on the decision.

2 North Carolina Abortion Restrictions Enjoined

 In Planned Parenthood South Atlantic v. Stein, (MD NC, Sept. 30, 2023), a North Carolina federal district court issued a preliminary injunction barring enforcement of two provisions of North Carolina's law regulating abortions.  The court said in part:

The plaintiffs are likely to succeed on the merits of their vagueness challenge to the requirement that providers determine and document the probably intrauterine location of a pregnancy before administering medication intended to terminate a pregnancy. The Act does not provide a clear standard by which providers can make this determination....

The plaintiffs are also likely to succeed on the merits of their equal protection challenge to the Act's requirement that surgical abortions after 12 weeks of pregnancy must be performed in a hospital.  The plaintiffs have offered uncontradicted evidence that the same medical procedures used for surgical abortions are used for miscarriage management and that the risks of those identical procedures are the same whatever their purpose... The plaintiffs have shown the absence of any rational medical basis for distinguishing between these two classes of patients....

CNN reports on the decision. 

4th Circuit Hears Oral Arguments on Catholic School's Firing of Teacher Who Entered Same-Sex Marriage

The U.S. 4th Circuit Court of Appeals on Wednesday heard oral arguments (audio of full oral arguments) in Billard v. Charlotte Catholic High School.  In the case, a North Carolina federal district court held that a Catholic high school is liable under Title VII of the 1964 Civil Rights Act for firing a substitute drama teacher after he entered a same-sex marriage and stated on Facebook his disagreement with Catholic teaching on marriage. (See prior posting.) As reported by Reuters, during oral argument the judges pressed the parties on the applicability of the ministerial exception doctrine, even though the school had stipulated that it would not raise the doctrine as a defense in order to avoid protracted discovery on the teacher's job duties.

North Carolina Legislature Overrides 3 Vetoes Relating To Transgender Youth and To Parental Rights

On Wednesday, the North Carolina legislature overrode Governor Roy Cooper's vetoes of three bills. House Bill 808 (full text) (veto message) (override vote) prohibits medical professionals from performing gender transition surgery on minors or prescribing puberty blockers or cross-sex hormones to minors. It also creates a cause of action for damages for minors who suffer physical, psychological, emotional, or physiological harm from such procedures or medication and allows minors to bring such actions up until they are 43 years old or 4 years after discovery of the injury and its cause, whichever is later.

House Bill 574 (full text) (veto message) (override vote) bars transgender women from middle school, high school and college athletic teams. The ban applies to all middle and high schools (specifically including church and religious schools) that are members of an organization that administers interscholastic athletic activities. Private church or religious schools that are not members of such an organization must comply with the ban in any game in which it is playing against a team that is a member. At the college level (public or private) the ban applies to all teams that are part of an intercollegiate athletic program. The law also creates a cause of action for any student who is deprived of an athletic opportunity or who is injured or likely to be injured by a violation of the Act. It also creates a cause of action for any student who is subject to retaliation for reporting a violation or any institution or employee harmed for complying with the law.

Senate Bill 49 (full text) (veto message) (override vote), labeled the "Parents' Bill of Rights", has broad provisions giving parents the right to direct the education, upbringing, moral or religious training and health care decisions of their children. It gives parents the right to seek medical or religious exemptions from immunization requirements and to withhold consent to reproductive health and safety education programs. It gives parents the right to access medical records of their children and to ban biometric scans, DNA storage or certain voice and video recordings of their children. It requires (with law enforcement exceptions) parental notification by the state of any suspected criminal offense against their children. It allows parents to review records of materials their children have borrowed from a school library.

The law includes extensive provisions on parental involvement in their children's public school education. Parents must be given information about a broad range of items relating to student progress, including "the course of study, textbooks, and other supplementary instructional materials for his or her child and the policies for inspection and review of those materials." The law requires procedures to notify parents of student physical and mental health, including advance notification of any name or pronoun changes used for the student.

  The law also provides:

Instruction on gender identity, sexual activity, or sexuality shall not be included in the curriculum provided in grades kindergarten through fourth grade, regardless of whether the information is provided by school personnel or third parties.

CNN reports on the new laws.

North Carolina Governor Vetoes Bills On Women's Sprots, Parental Rights and Gender Transition

On Wednesday, North Carolina Governor Roy Cooper announced that he has vetoed three bills passed by the state's legislature: 

(1) House Bill 574, Fairness in Women's Sports Act that prohibits transgender women from participating on school sports teams designated for women.

(2) Senate Bill 49, Parents Bill of Rights which increases parental rights and involvement in their children's education, including the right to seek a religious exemption from immunization requirements, the right to withhold consent for the child to participate in reproductive health education programs, and the right to review all material their child has borrowed from a school library, among many other rights.

(3) House Bill 808, Gender Transition for Minors, which prohibits medical professionals from performing surgical gender transition procedures on a minor or prescribe puberty blocking drugs or cross-sex hormones to a minor.

Christian Post reports on the Governor's action.

Certiorari Denied In Case Holding Charter Schools Are State Actors

Yesterday the U.S. Supreme Court denied review in Charter Day School, Inc. v. Peltier, (Docket No. 22-238, certiorari denied 6/26/2023). (Order List.) In the case, the U.S. 4th Circuit Court of Appeals sitting en banc in a 10-6 decision (full text of opinions) held that a publicly funded North Carolina charter school is a state actor and thus subject to the equal protection clause.  At issue was the school's promulgation of a dress code requiring female students to wear skirts.

North Carolina Legislature Overrides Veto of Abortion Law

 The North Carolina legislature last night voted to override Governor Roy Cooper's veto of Senate Bill 20 which imposes elaborate new restrictions on abortions in the state, summarized in this prior posting. 

Reuters reports on the legislature's action.

North Carolina Governor Vetoes New Abortion Restrictions

Yesterday, North Carolina Governor Roy Cooper vetoed (veto message) (press release) Senate Bill 20 (full text) which imposed numerous new restrictions on abortions.  According to the General Asembly Conference Committee's summary of the bill:

Part I of the Conference Committee Substitute to Senate Bill 20 would repeal and replace the current abortion law in North Carolina. Under the new law, abortion would be permitted through the first twelve weeks of pregnancy for any reason, through the twentieth week of pregnancy if the pregnancy resulted from rape or incest, through the twenty-fourth week of pregnancy if there is a life-limiting anomaly in the unborn child, and at any time if there is a medical emergency for the pregnant woman. Part I would also criminalize the provision or advertising of abortion-inducing drugs in certain circumstances, prohibit eugenic abortions, and establish informed consent and reporting requirements for abortion.

NPR reports on the governor's action, saying that now a veto override battle will take place in the legislature.

North Carolina Methodist Churches Sue to Disaffiliate from Parent Body

Suit was filed last month in a North Carolina state trial court by 38 United Methodist Churches in North Carolina which are seeking to disaffiliate from the United Methodist Church and retain their buildings and property.  The complaint (full text) in Mount Carmel United Methodist Church v. Western North Carolina Conference of the United Methodist Church, (NC Super. Ct., filed 11/10/2022), alleges in part:

Plaintiff Churches wish to disaffiliate from the United Methodist Church ("UMC") to pursue their deeply held religious beliefs. Defendants want to force Plaintiff Churches to stay affiliated with the UMC, and violate those beliefs by holding their church buildings and property hostage. Defendants claim Plaintiffs' Churches property is encumbered by an irrevocable trust for the benefit of the UMC and the only way for Plaintiff Churches to disaffiliate without surrendering the buildings and property that are central to their congregations is by the permission of the UMC and payment of a financial ransom.

Plaintiffs ask the court to declare that the UMC trust is terminated or is revocable and to quiet title to the Churches properties. Religion News Service reports on the lawsuit, saying in part:

Legal action — or the threat of legal action — represents a new strategy on behalf of churches that want to leave the 6.4 million-member United Methodist Church. The denomination is undergoing a wholesale splinter after decades of rancorous debate over the ordination and marriage of LGBTQ members.

The denomination allows churches to leave through the end of 2023. The exit plan allows them to take their properties with them after paying two years of apportionments and pension liabilities.

Some Of Fired Pastor's Claims Can Move Ahead

In Nation Ford Baptist Church Inc. v. Davis, (NC Sup.Ct., Aug. 19, 2020), the North Carolina Supreme Court allowed a Pastor to move ahead with a portion of his claims challenging his firing, saying in part:

Which set of corporate bylaws were in effect at the relevant time, whether the Church and Board followed the procedures set forth in the bylaws, and whether there was a contract of employment between Pastor Davis and the Church that was breached are factual and legal questions that are appropriately answered by reference to neutral principles of corporate, employment, and contract law....

Nonetheless, other claims raise questions that cannot be answered without considering spiritual matters. These claims must be dismissed for lack of subject matter jurisdiction....

[I]n all other respects the first claim for relief goes too far, particularly in the remedy sought, because the court can neither declare Pastor Davis the spiritual leader of the Church nor require that he be allowed to conduct services. Addressing this controversy would entangle the court in religious matters such as whether Pastor Davis adequately performed his duties as a pastor as that role is understood in accordance with the Church’s faith and religious traditions.

[Thanks to Will Esser via Religionlaw for the lead.]

Court Lifts Pre-Dobbs Injunction Against Enforcement Of North Carolina Abortion Ban

 In Bryant v. Woodall, (MD NC, Aug 17, 2022), a North Carolina federal district court lifted an injunction it had entered in 2019 enjoining enforcement North Carolina statutes that prohibited pre-viability abortions. The court said in part:

None of the parties argue that the injunction remains legally enforceable, nor could they. The injunction was entered under the authority of Roe and Casey; that precedent has been overruled by Dobbs. Because the power to regulate abortion has been returned to the states, the parties’ suggestion that this court’s injunction is having an effect, whether preventing “confusion,”... or “preserv[ing] Plaintiffs’ ability to provide critical healthcare services,”... suggests the parties are improperly relying upon, and asserting, an injunction that is no longer lawful.

ADF issued a press release announcing the decision.

Anti-Abortion Protesters Can Move Ahead With Challenge To COVID Order

 In Global Impact Ministries, Inc. v. City of Greenspboro, (MD NC, March 16, 2022), a North Carolina federal district court allowed plaintiffs who were anti-abortion protesters, to move ahead with their free speech, freedom of association, equal protection, due process and 4th Amendment claims.  Plaintiffs allege that the city's COVID stat-at-home order was enforced to bar them from walking, praying, and counseling outside of an abortion clinic while others who were not praying or engaging in religious speech were allowed to walk in the area. The court did dismiss plaintiffs' free exercise claim, finding that the COVID order was neutral and generally applicable.

Catholic High School Liable Under Title VII For Firing Gay Teacher

In Billard v. Charlotte Catholic High School, (WD NC, Sept. 3, 2021), a North Carolina federal district court held that a Catholic high school is liable under Title VII of the 1964 Civil Rights Act for firing a substitute drama teacher after he entered a gay marriage and stated on Facebook his disagreement with Catholic teaching on marriage. The court said in part:

Under Bostock, this Court finds that Plaintiff has raised a valid Title VII sex discrimination claim.... Defendants cannot escape Title VII liability by recharacterizing Plaintiff’s announcement of his engagement as “advocacy.” If Plaintiff were a woman who posted on Facebook that she was getting married to her husband, Defendants would not have interpreted her announcement as “advocacy” for or against the Catholic Church. Plaintiff’s engagement was only considered advocacy because of his sex.

The court went on to reject several defenses that were raised: the religious organization exemption in Title VII; the ministerial exception doctrine; the Religious Freedom Restoration Act; and 1st Amendment freedom of association.

North Carolina Governor Vetoes Race/ Sex/ Down Syndrome Abortion Ban

On June 25, North Carolina Governor Roy Cooper vetoed HB 453 which banned abortions unless the physician has determined that it is not being sought because of the race or sex of the fetus or because the fetus has Down Syndrome. In his veto message (full text), Cooper said: 

This bill gives the government control over what happens and what is said in the exam room between a woman and her doctor at a time she faces one of the most difficult decisions of her life. The bill is unconstitutional and it damages the doctor-patient relationship with an unprecedented governmental intrusion.

Court Dismisses Challenge To Book Used In High School Literature Curriculum

In Coble v. Lake Norman Charter School, (WD NC, Mrch 23, 2021), a North Carolina federal district court dismissed 1st Amendment challenges to a high school's use in its literature curriculum of the award-winning book The Poet X by Elizabeth Acevedo. Plaintiffs, parents of a high school student (JHC), claim that the book is hostile to religion and disparages Catholicism. Rejecting plaintiffs' Establishment Clause argument, the court said in part:

The problem with the Cobles’ claim is that, without any factual allegations of how LNC uses The Poet X in the classroom, the Court has no ability to determine whether that specific use conveys an endorsement or disapproval of religion. The content of the book itself is not sufficient to prove a violation of the second Lemon prong even if the book’s content is disparaging toward a particular faith....

Rejecting a free exercise challenge, the court said in part:

In the present case, the Cobles claim that the potential exposure of their son to The Poet X violates the Free Exercise Clause because it violates JHC’s religious beliefs. But this claim ignores the fact that JHC was not required to read The Poet X. Rather, LNC offered an alternative to the book.... LNC’s offer of an alternative text tends to establish that LNC has done nothing to burden JHC’s religious practices.

Church's Appeal of Bank's Interpleader Is Dismissed

United Community Bank v. Wakefield Missionary Baptist Church,  (NC App., March 16, 2021), involves a dispute over who is entitled to bank accounts of Wakefield Missionary Baptist Church on deposit at United Community Bank. The Bank filed an interpleader action. The church trustees sought dismissal on the ground that the dispute was an ecclesiastical matter requiring determination of who is a church member, and their roles and authority. As recounted by the appeals court:

The trial court granted the Bank’s motion for interpleader and discharge, ordering the Bank to relinquish all of the disputed funds to the Clerk of Superior Court to be held until further orders. The Bank complied.

The court dismissed the appeal as interlocutory, saying in part:

The interlocutory order granting interpleader does not impair the Trustee Defendants’ ... rights because the issue of who has control over the Church’s assets with the Bank is the very thing yet to be decided at the trial court.... The proceeding does not interfere with the Trustee Defendants’ substantial right to be free from ecclesiastical entanglement because the trial court can resolve the controversy based on neutral principles of law.

Slam Poetry Book In Curriculum Upheld

In Coble v. Lake Norman Charter School, Inc., (WD NC, Nov. 6, 2020), a North Carolina federal district court refused to issue a temporary restraining order to prevent a public charter school from including The Poet X in its ninth-grade language arts curriculum. Plaintiffs claim that inclusion of the book violates the Establishment Clause as well as their free exercise rights. The court said in part:

The sincerity of Plaintiffs’ religious objections to The Poet X is not disputed, nor is the fact that the book deeply offends Plaintiffs. Even accepting, however, that the work is antithetical to the particular Christian beliefs espoused by Plaintiffs, its inclusion in the high school curriculum alone does not violate the Establishment Clause...

The issue is not whether The Poet X embodies anti-Christian elements; the Court assumes that it does. Instead, the issue is whether its selection and retention by school officials “communicat[es] a message of government endorsement” of those elements....

Similarly, inclusion of The Poet X as representative of a particular literary genre (slam poetry / verse novel) neither religiously inhibits nor instills, but simply informs and educates, students on a particular social outlook forged in the crucible of Afro-Latinx urban life. To include the work in the curriculum, without further evidence of the school’s endorsement, no more communicates governmental endorsement of the author’s or characters’ religious views than to assign Paradise Lost, Pilgrim’s Progress, or The Divine Comedy conveys endorsement or approval of Milton’s, Bunyan’s, or Dante’s Christianity....

Suit Challenges North Carolina Opportunity Scholarship Program

Suit was filed in a North Carolina state trial court this week challenging North Carolina's Opportunity Scholarship Program.  The complaint (full text) in Kelly v. State of North Carolina, (NC Super. Ct., filed 7/27/2020), alleges that as implemented the Program violates various provisions of the North Carolina state Constitution. The complaint says in part:

2. The Program sends millions of taxpayer dollars to private schools without imposing any meaningful educational requirements. As implemented, many of the Program’s funds are directed to schools that divide communities on religious lines, disparage many North Carolinians’ faiths and identities, and coerce families into living under religious dictates.

3. The Program as implemented funds discrimination on the basis of religion. Families’ ability to participate in the Program is limited by their religious beliefs and their willingness to cede control of their faith to a religious school.

4. The Program as implemented funds schools that discriminate against students and parents based on who they love or the gender they know themselves to be, and against those with religious beliefs that do not condemn homosexuality, bisexuality, or gender non-conformity.

NCAE issued a press release announcing the filing of the lawsuit. AP reports on the lawsuit.

Defamation Suit Dismissed Under Ecclesiastical Entanglement Doctrine

In Lippard v. Holleman, (NC App., May 19, 2020), the North Carolina Court of Appeals affirmed the dismissal of a defamation suit brought by a former church pianist and vocalist against the Baptist church's pastor and its minister of music. A dispute over assignment of a vocal solo had escalated leading to plaintiff's dismissal. Plaintiff sued over various statements made in connection with her termination. The court held:

... [D]etermining the truth or falsity of Defendants’ alleged defamatory statements—where the content of those statements concerns whether Plaintiffs complied with [Diamond Hill Baptist Church's] practices—would require us to interpret or weigh ecclesiastical matters, an inquiry not permitted by the First Amendment....

We affirm the trial court’s order on the ground that all statements Plaintiffs challenge are barred by the ecclesiastical entanglement doctrine.

Chief Justice McGee concurred in part and dissented in part.  [Thanks to Will Esser via Religionlaw for the lead.]