Heard v. Johnson11/21/2002
(5th Cir. 1972) (a minister's assignment is a matter "of church administration and government and thus, purely of ecclesiastical cognizance"), cert. denied, 409 U.S. 896, 93 S. Ct. 132 (1972); United Methodist Church, supra, 571 A.2d at 794 ("employment disputes concerning the status of pastors are inherently ecclesiastical and cannot constitutionally be subject to review"). Clearly the Free Exercise Clause guarantees Mt. Airy the freedom to decide to whom it will entrust ministerial responsibilities.
A church's freedom in these matters is not, however, absolute. See Bowen v. Roy, 476 U.S. 693, 699, 106 S. Ct. 2147, 2152 (1986) ("Our cases have long recognized a distinction between the freedom of . . . belief, which is absolute, and the freedom of . . . conduct, which is not absolute."); Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S. Ct. 900, 903 (1940) (" he [First] Amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be."). Even though the selection or ouster of a minister is a purely ecclesiastical decision taken in accord with the religious convictions of the church, it is not "totally free from legislative restrictions." Sherbert v. Verner, 374 U.S. 398, 403, 83 S. Ct. 1790, 1793 (1963) (quoting Braunfeld v. Brown, 366 U.S. 599, 603, 81 S. Ct. 1144, 1146 (1961)) (internal punctuation omitted).
State restriction on religious activity is allowed when the activity "pose some substantial threat to public safety, peace or order." Id. (citation omitted). For example, a church could not select its ministers on the basis of their demonstrated willingness to commit a crime, or by forcing the candidates to play a game of Russian roulette and hiring whoever survived. See Minker, supra, 894 F.2d at 1357. Nor may a church seek confidential medical information from a pastor's psychiatrist in making a reappointment determination as to that pastor. See Alberts v. Devine, 479 N.E.2d 113, 395 Mass. 59 (Mass. 1985), cert. denied sub nom., Carroll v. Alberts, 474 U.S. 1013, 106 S. Ct. 546 (1985).
Although the Supreme Court has recognized that the religion clauses allow for some state restriction, weighing the free exercise protections against important state interests requires a "delicate balancing." McDaniel v. Paty, 435 U.S. 618, 628 n.8, 98 S. Ct. 1322 (1978). See also Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S. Ct. 1526, 1533 (1972) ("The essence of all that has been said and written on the subject [of First Amendment protection] is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."). In applying this balancing test, the Court has concluded that some civil rights and common law claims, which would be protected in a secular setting, "are not sufficiently compelling to overcome certain religious interests." Minker, supra, 894 F.2d at 1357 (citing Gonzalez, supra, 280 U.S. at 16, 50 S. Ct. at 5). See, e.g., Serbian, supra, 426 U.S. at 715 (declining to assert jurisdiction over a case brought by a defrocked bishop to have himself declared the true bishop of a diocese, and noting "constitutional concepts of due process, involving secular notions of 'fundamental fairness' or impermissible objectives, are . . . hardly relevant to such matters of ecclesiastical cognizance."). In the specific area of the church-minister relationship, other courts have expanded the universe of claims that do not overcome the First Amendment protections to include Civil Rights Act protection from race and sex discrimination and a variety of common law claims. See, e.g., Minker, supra, 894 F.2d at 1354 (pastor's claim for violation o
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