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After Baptism Gone Wrong, Court Weakens Church Protections
Oklahoma Supreme Court says membership matters most in tortured
ex-Muslim’s lawsuit.
SARAH EEKHOFF ZYLSTRA JANUARY 29, 2018 10:27 AM After Baptism Gone
Wrong, Court Weakens Church Protections
When churches face lawsuits, does their religious liberty hinge on
whether or not their accuser is an official member? Experts are
concerned that, in an unusual baptism gone wrong, a state supreme
court has decided yes.
Nearly a year ago, the Oklahoma Supreme Court decided 5–3 that a
Muslim convert to Christianity—whose baptism nearly got him killed—couldn’t sue First Presbyterian Church in Tulsa for
inadvertently alerting his would-be murderers with its online
announcement of the baptism.
Ten months later—in December 2017—the justices changed their minds,
issuing a 5–4 decision that the man could, in fact, have his day in
court.
This month, First Presbyterian asked the Sooner State’s top court to
take a third look at the case, arguing that the justices mixed up two
separate issues of law: the ecclesiastical extension/church autonomy
doctrine and the ministerial exception.
The trouble started more than six years ago, when a Syrian Muslim man
converted to Christianity and asked if he could be baptized by First Presbyterian. The man—who is called John Doe in court documents to
protect his identity—says he asked the church to keep quiet about it,
since shari‘ah law demands that converts from Islam be executed.
Later that day, the man flew to Syria to marry his fiancée. A few
weeks later, while still there, he was kidnapped and threatened by
Islamist extremists, including his uncle and cousin.
His abductors had discovered his conversion through First
Presbyterian’s online weekly bulletin, which announced his baptism,
according to his lawsuit. After three days of torture, the man escaped
after killing his uncle during a struggle for a gun.
It took several months for the man and his wife to make their way back
to the United States, he told the Tulsa World. After returning, he
went through more than a dozen surgeries to repair his body from the
torture.
He sued First Presbyterian for $75,000, accusing it of breach of
contract, negligence, and outrage. The church asked for the case to be dismissed, reasoning that secular courts don’t have jurisdiction over ecclesiastical matters like theology and customs.
The district court agreed, dismissing the case “for lack of subject
matter jurisdiction.” When the man appealed to the state supreme
court, it said the same thing. The case was dismissed in February
2017.
Then, last month, the Oklahoma Supreme Court handed down another
ruling.
“No facts changed,” First Presbyterian’s attorney, John Tucker, told
CT. And in the ruling itself, no reason was given for the rehearing,
which can be requested by a losing party after any decision.
But one of the justices that sat out the first decision weighed in (on
Doe’s side) the second time around, Tucker said. And one of the
justices that agreed with the church in February changed his mind by
December.
“The foundational inquiry is to discern exactly what Doe asked
appellees to do with respect to baptism, what appellees agreed to
perform for Doe, and ultimately the nature and extent of Doe’s consent surrounding baptism,” the justices stated, noting multiple times that
Doe did not become a member of First Presbyterian.
“[E]cclesiastical protection for a church arises solely from
membership and the consent by the person to be governed by the
church,” their opinion continued [emphasis theirs]. They referenced
the US Supreme Court’s Hosanna-Tabor decision, in which all nine
justices agreed that the government couldn’t interfere if a religious organization wanted to fire a minister.
“[T]he ministerial exception or the church autonomy doctrine, grounded
in the religion clause of the First Amendment, ‘operates as an
affirmative defense to an otherwise cognizable claim, not a
jurisdictional bar,’” the Oklahoma Supreme Court justices decided
[emphasis theirs].
In other words, a religious organization can use the ministerial
exception or church autonomy doctrine to defend itself during a case,
but not use it to escape from trial altogether.
But that’s where the court got it wrong, Tucker argued in his petition
for rehearing.
Yes, the ministerial exception can be used to defend oneself at trial.
But the church autonomy doctrine is something altogether different. It “establishes a constitutional denial of jurisdiction,” which means
that a secular court has no right to even try the case in the first
place.
“This case cannot be finally decided without delving into Christian
beliefs about baptism, generally, and Presbyterian beliefs,
specifically,” Tucker wrote. “[I]t will be necessary to judge how the Presbyterian faith views publication, both under church governance and historical practice.”
The court placed Doe’s intent—which was to get baptized but not to
become a church member—over the “rules, customs, and tradition of the baptizing church,” Tucker wrote. He continued:
“Where then does the majority of the Court draw the protected line?
Any publication beyond profession of faith in front of the
congregation is now subject to control by the secular court,
emasculating the protections of the First Amendment. Under the
substituted opinion, courts have the right to tell churches how they
can and cannot report baptisms. … No court of record in the United
States has ever reached such a conclusion.”
Christiana Holcomb, an attorney for Alliance Defending Freedom (ADF),
agrees with Tucker.
“I was astonished at how narrowly [the Oklahoma Supreme Court]
construed and, frankly, abused the church autonomy doctrine,” she
said. “They interpreted it so narrowly that it would only apply to
church members, which was never its intent. They ignored an abundance
of other [US] Supreme Court precedents.”
Holcomb says ADF is monitoring the case closely.
“We’ll be weighing in as appropriate,” she said. “It’s a big deal. It would be precedential for the state of Oklahoma. It would alter my
legal counsel to churches within the state of Oklahoma—it’s that
egregious, and such a significant departure from established
precedent.”
Religious liberty scholar and law professor Thomas Berg told CT he
didn’t “have a strong feeling whether the church-autonomy exception,
or the ministerial exception, should be technically jurisdictional.”
Either one may require the court to dig into a church’s documents or
dealings to determine facts. The important thing is that a court does
it quickly so that “the intrusion on it from the litigation process
will be minimized,” he said.
He agreed that Doe’s lack of membership “does not avoid application of
of the church-autonomy doctrine.”
Doe reached out to the church for the baptism, “thereby submitted
himself to the church’s rules on that practice,” Berg said. “Church autonomy binds those who associate themselves with the church; you can associate yourself for limited purposes and be bound within that
sphere. A parallel case, cited by the dissent, involves the
non-Catholic husband who agreed to participate in the Catholic
annulment process and then tried to sue his ex-wife for defamation for statements she made during it. He properly lost, because he accepted
the terms of that particular process.”
Doe’s best argument might be “that the church breached a promise of confidentiality made by the member who said, in the lead-up to the
baptism, ‘Nobody will find out. We will make sure that your secret is safe,’” said Berg, who emphasized that he had not studied the full
court record.
“Whatever the precise facts here … the legal point is that a church
can surrender its autonomy by voluntary agreement,” he said. “For
example, a church doesn’t have to pay its minister an above-minimum
wage, but if it signs a contract to pay a given wage, it can be sued
for breach.”
CT previously reported when the Muslim convert to Christianity sued
his church for celebrating his baptism, and when the Oklahoma Supreme
Court initially ruled against him.
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