The Fifth Circuit will soon decide whether to reconsider a case over whether religious groups control their own internal religious matters, or if — in the words of the plaintiff — “Caesar must enter the temple to have a look around.” Under the First Amendment, that’s an easy question to answer. It’s even easier after this summer’s Supreme Court decision in Our Lady of Guadalupe School v. Morrissey-Berru.
By a vote of 7–2, Our Lady confirmed that the First Amendment forbids ministers from suing ministries over their termination from the ministry. That rule makes the case before the Fifth Circuit, McRaney v. North American Mission Board of the Southern Baptist Convention, straightforward. There, an ordained Southern Baptist pastor is suing a national Southern Baptist ministry for his termination from his Southern Baptist ministry position. The ministerial exception doesn’t allow that kind of claim to proceed.
What makes the case even easier is that the termination was based solely on a disagreement between the minister (Will McRaney) and the national ministry (the North American Mission Board) over how to manage internal Southern Baptist governance. McRaney thought the Mission Board wanted too much control over starting new churches and training church planters, and he thought state-based ministries should take the lead instead. When he lost the debate with the Mission Board, he turned to the courts to try again. But under Our Lady, this kind of religious dispute is one courts can’t control — or “even influence.”
And McRaney isn’t bashful about admitting publicly that the goal of his lawsuit is influencing internal Southern Baptist policy. His GoFundMe page seeks funding to use “this case” to make “reform take place in [the Mission Board] and the [Southern Baptist Convention].” He’s posted on social media saying that he intends to use “financial restitution through damages” and the “risk of additional embarrassment” to the Mission Board through compelling “sworn testimonies” as leverage to change the internal ministry decisions of the Mission Board and the Southern Baptist Convention. None of that is permissible under Our Lady.
But in his en banc briefing, McRaney told the Fifth Circuit that it’s actually all okay because the Mission Board wasn’t his employer. To his mind, because he’s not suing the state-level Southern Baptist ministry that fired him as its executive director and is instead suing its national Southern Baptist ministry partner (the Mission Board), the First Amendment turns a blind eye. Under that theory, the First Amendment doesn’t protect the Southern Baptist denomination as a whole from government intrusion into its internal religious governance. Instead, it just protects the specific legal entity that signs a plaintiff’s paycheck.
The Religion Clauses aren’t so myopically focused on Mammon, or on the niceties of state-law corporate structure. And for good reason. Limiting the First Amendment’s protections only to formal employment would mean that volunteer positions — deacons, elders, Sunday School teachers — are not covered, depriving religious organizations of control over the volunteers that are often crucial to imparting the faith and mission. And limiting church autonomy to formal employment would also tend to discriminate against certain religious organizations based on their internal religious structure. Case in point: Non-hierarchical churches such as the Southern Baptist Convention would receive less protection than hierarchical institutions with more formal structures, such as the Catholic Church. That would turn ministerial exception cases into a pleadings game, with plaintiffs skipping over their employers and instead suing any deep-pocketed ministry partners that allegedly exercised undue religious influence over the employer.
It is thus no surprise that, while the ministerial exception often comes up in the context of employment relationships, it doesn’t stop there. Ministers don’t get to use state power against their churches over ministry terminations, full stop. From the vantage point of courts needing to avoid interference in internal church affairs, that’s true whether the minister’s termination lawsuit is targeted at his local church or his denomination. Our Lady’s logic applies just as much to employees as to other “individuals who play key religious roles” for a religious body.
That explains why lower courts have routinely protected non-employer ministries from similar suits. As is most relevant here, in Cannata v. Catholic Diocese of Austin, the Fifth Circuit relied on the ministerial exception to dismiss a suit against the employer church and the non-employer diocese. Likewise, in Fratello v. Archdiocese of New York, the Second Circuit applied the exception in a suit against both the employer school and the non-employer diocese. And in Bell v. Presbyterian Church (U.S.A.), the Fourth Circuit dismissed a lawsuit by a minister against religious denominations that contributed to his former religious employer. The list goes on.
These applications of the ministerial exception make perfect sense. Otherwise, in Cannata for example, the church would have been protected but the diocese would not, even though the core issue — whether a religious organization must allow a particular person to hold a religiously significant role — is the same. And McRaney’s case should be a particularly easy application of the exception to a non-employer, since the two religious institutions were not only within the same denomination but also in a formal, ongoing, and long-term partnership that persists to this day.
So how did the Fifth Circuit panel get this case wrong and make en banc rehearing necessary? Three reasons.
First, the panel’s decision neglects the most obvious reason the claims cannot proceed: the ministerial exception. In a footnote, the panel said the ministerial exception ruling was not before the court and therefore declined to address it. But even if that was a sufficient reason at the time of the footnote’s writing (and, as explained next, it wasn’t), it is not now: McRaney has put the exception back front and center through his full-throated en banc argument that Our Lady doesn’t apply.
Second, the ministerial exception hasn’t been waived in this case because it cannot be waived. In the words of Judge Batchelder’s Conlon v. InterVarsity decision for the Sixth Circuit, “the Constitution does not permit private parties to waive the First Amendment’s ministerial exception” because “this constitutional protection is not only a personal one; it is a structural one that categorically prohibits federal and state government from becoming involved in religious leadership disputes.” The Seventh Circuit’s Tomic v. Catholic Diocese of Peoria decision likewise found that neither the ministerial exception nor the larger church-autonomy doctrine is subject to waiver, since a court is “not [to] allow itself to get dragged into a religious controversy.” The Third Circuit agreed in Lee v. Sixth Mount Zion Baptist Church, recognizing the exception as a “structural” limitation on the power of courts such that courts may affirmatively raise it sua sponte to prevent the judicial entanglement with religious affairs. The Fifth Circuit’s Whole Woman’s Health v. Smith decision likewise noted the “structural protection afforded religious organizations and practice” under the ministerial exception. Thus, regardless of the parties’ actions, the First Amendment places an independent duty on courts to refrain from adjudicating such disputes.
The upshot here is that, since the ministerial exception is plainly before the Court, the Court should resolve it now. Entangling the judiciary in years of additional litigation over religious dispute, and allowing the judiciary to be used as leverage to pressure religious governance changes, is neither necessary nor permissible.
Third, the panel decision simply missed the mark. Motivated by worries that placing religious organizations “in a preferred position” is unconstitutional, the panel ruled the trial court should try to “apply neutral principles of tort law” to resolve the case in a way that avoided “purely ecclesiastical questions.”
But claims that impinge on internal church government are necessarily ecclesiastical, regardless of whether they require a court to decide “purely ecclesiastical” religious questions. And relying on “neutral principles of law” — a concept that the Supreme Court has applied only in church-property cases — cannot avoid the interference with religious autonomy that necessarily attends judicial intervention in a matter of internal church affairs. The question is not whether religious organizations are placed “in a preferred position”; as the Supreme Court emphasized unanimously in Hosanna-Tabor v. EEOC, the First Amendment itself “gives special solicitude to the rights of religious organizations.” Instead, the question is whether deciding this case would interfere with the church governance and mission of the Mission Board.
It would, so this case deserves another look by the Fifth Circuit — not least because the panel’s decision is already being cited to the Texas supreme court in a case raising critical church-autonomy questions. The bottom line is that courts shouldn’t be deciding religious disputes between Baptists. That is not how we do church and state in this country.
Daniel Blomberg is Senior Counsel and Christopher Mills is Constitutional Law Fellow at The Becket Fund for Religious Liberty. The views expressed here are their own and do not necessarily reflect the views of Becket or its clients.