What we are called to respect in each person is first of all his life, his physical integrity, his dignity and the rights deriving from that dignity, his reputation, his property, his ethnic and cultural identity, his ideas and his political choices. We are therefore called to think, speak and write respectfully of the other, not only in his presence, but always and everywhere, avoiding unfair criticism or defamation.1
Introduction
In January 2002, The Boston Globe swept the nation with a report about child sexual abuse allegations in the Roman Catholic Church, specifically in the Archdiocese of Boston.2 Since the mid-1990s, more than 130 individuals had made sexual abuse allegations against John J. Geoghan; however, and perhaps even more disturbing, the Roman Catholic Church knew about the abuse and chose not to remove the former priest but simply reassigned him across numerous parishes prior to his defrocking.3 The report caused mass outrage and resulted in states amending their civil and criminal child sexual abuse statutes in an attempt to prevent further abuses.4 The United States Conference of Catholic Bishops also created Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons (Essential Norms), which sought to provide guidelines and policies on investigating and reporting sexual abuse allegations and protecting the rights of the accusers and accused.5 The Holy See even reviewed and expressed its support for the Essential Norms in December 2002.6 Nevertheless, the abuses only continued.7
In response to another report of over one thousand victims of sexual abuse, and the cover-up of those abuses by over three hundred priests over a period of seventy years in Pennsylvania, Pope Francis admitted that the Roman Catholic Church “showed no care for the little ones” and needed to acknowledge, condemn, and combat the atrocities perpetrated by clergymen.8 However, many remain pessimistic about the Roman Catholic Church’s dedication to investigating and reporting sexual abuse allegations and protecting victims of sexual abuse, particularly “minors.”9But who is a “minor”? In the State of Texas, a “child” or “minor” is a person under eighteen years of age.10 Furthermore, a “child” is not an “adult.”11 Under the Code of Canon Law of the Roman Catholic Church, the meaning of “minor” is similar: “A person who has completed the eighteenth year of age has reached majority; below this age, a person is a minor.”12 However, the Code of Canon Law also provides that “[w]hoever habitually lacks the use of reason is considered not responsible for oneself . . . and is equated with infants,” and “a minor before the completion of the seventh year is called an infant.”13 Therefore, in the Roman Catholic Church, a “minor” means a person under eighteen years of age or a person older than eighteen years of age who “lacks the use of reason.”14 The meaning of “minor,” the implications of interpreting the term, as well as fears of interfering in the internal affairs of the Roman Catholic Church, played significant roles in a recent defamation suit brought before the civil courts in the State of Texas.15 This was due in no small part to the ecclesiastical abstention doctrine, which is a court-created doctrine designed to protect religious organizations from secular judicial interference in their internal affairs.16This Case Note will address the ecclesiastical abstention doctrine in In re Diocese of Lubbock.17 In In re Diocese of Lubbock, the Supreme Court of Texas held that the ecclesiastical abstention doctrine applied and barred the 237th District Court from hearing and ruling upon a defamation suit that involved Deacon Jesus Guerrero and the Diocese of Lubbock: “[T]he substance and nature of [Deacon Jesus Guerrero’s] claims against [the Diocese of Lubbock] will necessarily require the trial court to evaluate whether the Diocese properly applied Canon Law and are inextricably intertwined with the Diocese’s internal directive to investigate its clergy.”18 In effect, the Supreme Court of Texas showed deference to the Diocese of Lubbock and the Roman Catholic Church in the suit.19
The Supreme Court of Texas wrongly decided In re Diocese of Lubbock because it failed to permit the application of neutral principles of law, or secular, objective, well-established legal concepts, to a defamation suit.20 By failing to permit the application of neutral principles to a defamation suit, the Supreme Court of Texas expanded the bounds of the ecclesiastical abstention doctrine and elevated the status of religious organizations in the State of Texas at the expense of the long‑recognized right of an individual to the protection of their own reputation and interest in human dignity.21
Part I of this Case Note provides some background information on the application of the ecclesiastical abstention doctrine and neutral principles in prior case law.22 Parts II and III review the factual background, procedural history, and holding of In re Diocese of Lubbock and emphasize the dissent from Justice Boyd.23 Part IV discusses why the Supreme Court of Texas should have permitted the application of neutral principles to the defamation suit; not only could the civil courts have made a judgment secular in nature, but they also could have done so without any entanglement in religious doctrine, faith, or the internal affairs of the Diocese of Lubbock.24 Finally, the Conclusion reiterates the consequences of civil courts failing to apply secular, objective, well-established legal concepts to disputes involving religious organizations and appeals to such courts to say “what the law is.”25
I. Background and Prior Law
A. The Separation of Church and State and the Ecclesiastical Abstention Doctrine
Under the First Amendment of the United States Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”26 The Establishment Clause and the Free Exercise Clause of the Constitution, which “prohibit[] the government from ‘establishing’ a religion” and “protect[] citizens’ right to practice their religion” unless the practice violates “public morals” or “a ‘compelling’ government interest,” respectively, form the basis of the ecclesiastical abstention doctrine.27 Under the ecclesiastical abstention doctrine, religious organizations are given the power to decide, “free from state interference,” matters that pertain to their government, faith, and doctrine.28 If a civil court must decide a dispute “strictly and purely ecclesiastical in its character,” as opposed to a dispute only theoretically or tangentially touching on religion, the claim is barred from civil court review.29 In several early cases, the United States Supreme Court specifically addressed the Establishment Clause and the Free Exercise Clause, and it also provided the basis for the ecclesiastical abstention doctrine.30
i. The Origins of the Doctrine
The origins of the ecclesiastical abstention doctrine are found in cases pertaining to church property disputes.31 In those early church property dispute cases, namely Watson v. Jones and Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America, the United States Supreme Court employed a “deferential” or “hands-off” approach to matters involving religious organizations.32 Under this approach, the Supreme Court deferred to the decisions of religious organizations and refused to apply any conflicting legislative or judicial principles in an attempt to protect religious autonomy.33
The Watson Court confirmed that the highest church judicatories’ decisions pertaining to ecclesiastical rule, custom, or law should bind the civil courts; however, the Supreme Court also established that when a civil right depends upon an ecclesiastical matter, the civil court is the ultimate decisionmaker.34 In Watson, the Supreme Court encountered a church property dispute between two religious factions formed after a schism in the Presbyterian Church.35 The factions included an anti-slavery faction and a minority pro-slavery faction, the latter of which held title to the church property.36 The anti-slavery faction and the pro-slavery faction filed claims in court, each “claiming to be the true church and therefore entitled to use” the church property.37 Although the Supreme Court admitted that civil court judges lack the requisite expertise to decide ecclesiastical matters and—in the interest of promoting religious liberty and preventing entanglement with religious institutions—should not interfere in such matters, the Court ultimately determined that it could decide this church property dispute.38 In Watson, because the minority pro-slavery faction separated from the church before the property dispute commenced and denied that church’s authority, denounced its action, and refused to abide by its judgments, the Supreme Court found that the property dispute at issue did not implicate ecclesiastical matters.39
Thereafter, in Kedroff, the Supreme Court constitutionalized the framework of church-state relations promulgated in Watson.40 Like Watson, Kedroff concerned the right to use and occupy church property or, specifically, St. Nicholas Cathedral in New York City.41 Unlike Watson, however, the right to use and occupy church property centered on the Archbishop of the Archdiocese of North America and the Aleutian Islands and whether (1) appointment by the Patriarch of Moscow and All Russia and its Holy Synod or (2) election by a sobor of the American churches affiliated with the Russian Orthodox Church validly selected the ruling hierarch for the American churches.42 This church property dispute interwove matters of ecclesiastical government with the constitutionality of a state statute, Article 5-C of the New York Religious Corporations Law, which effectively transferred control of the New York churches of the Russian Orthodox Church from the Patriarch of the Russian Orthodox Church to the Russian Orthodox Church in North America.43 While the Court of Appeals of New York denied Benjamin Fedchenkoff, the Patriarch’s appointed Archbishop, and the Russian Orthodox Church use and occupancy of St. Nicholas Cathedral based on Article 5-C of the New York Religious Corporations Law, the Supreme Court determined that Article 5-C violated the First Amendment of the United States Constitution, which applied to the states through the Fourteenth Amendment.44 According to the Supreme Court, Article 5-C not only legislatively transferred control over churches, which violated the principle of separation of church and state, but also unconstitutionally prohibited the free exercise of religion.45 Pulling from Watson, the Supreme Court confirmed that religious organizations require independence from secular control or manipulation and, therefore, have the power to decide for themselves matters of church government as well as those of faith and doctrine.46 Because the church property dispute in Kedroff turned strictly on matters of ecclesiastical government, and Article 5-C of the Religious Corporations Law was deemed unconstitutional, the Supreme Court held that control over the property lay with the Russian Orthodox Church.47
The cases of Watson and Kedroff illustrate the Supreme Court’s deference to religious organizations, at least as that deference pertains to matters “strictly and purely ecclesiastical in [their] character.”48 Nevertheless, the Supreme Court eventually offered an alternative approach to matters involving religious organizations: the application of neutral principles of law.49
ii. The Application of Neutral Principles of Law
The United States Supreme Court has accepted and supported the application of neutral principles of law, or secular, objective, well‑established legal concepts, to church property disputes.50 First mentioned in Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, the Supreme Court noted that neutral principles exist in all property disputes, and civil courts could apply those principles to property disputes involving religious organizations.51 Nevertheless, civil courts could not apply those principles if the church property dispute required the resolution of religious doctrine or practice.52 The Supreme Court also referenced neutral principles of law in Maryland & Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, Inc. and Serbian Eastern Orthodox Diocese for the United States and Canada v. Milivojevich; however, in the latter case, the United States Supreme Court ultimately determined that the Supreme Court of Illinois impermissibly applied neutral principles to resolve the dispute and, therefore, deferred to the Serbian Eastern Orthodox Diocese for the United States of America and Canada.53
Like in Kedroff, where the Supreme Court determined that the right to the use of church property centered on matters of ecclesiastical government,54 in Serbian Eastern Orthodox Diocese, the Court held that control over church property and the structure and administration of the American-Canadian Diocese of the Serbian Eastern Orthodox Church hinged on resolving matters of internal church discipline and government.55 Comprising that internal church discipline and government were decisions pertaining to the defrocking of Bishop Dionisije of the American-Canadian Diocese of the Serbian Orthodox Church and the reorganization of the American-Canadian Diocese into three Dioceses.56 The United States Supreme Court found that the Supreme Court of Illinois (1) improperly invalidated the decisions of the Holy Synod of the Serbian Orthodox Church to defrock Bishop Dionisije and reorganize the American-Canadian Diocese into three Dioceses and (2) impermissibly relied on neutral principles to substitute its own interpretation of the constitutions of the American-Canadian Diocese and the Holy Synod of the Serbian Orthodox Church.57 In doing so, the Supreme Court of Illinois interfered in a matter “at the core of ecclesiastical affairs”—internal church government.58 Because the resolution of the aforementioned disputes entangled the civil courts in, essentially, religious controversies, the ecclesiastical abstention doctrine barred the Supreme Court of Illinois from hearing the case and required it to accept the decisions of the highest ecclesiastical tribunals as binding.59
Albeit frowned upon in Serbian Eastern Orthodox Diocese,60 the Supreme Court accepted and supported the adoption of secular, objective, well‑established legal concepts in Jones v. Wolf, since doing so never entangled the civil courts in theological or doctrinal matters.61 In Jones, the primary dispute concerned ownership of church property following a schism in a local church affiliated with the Presbyterian Church of the United States.62 To determine ownership over the church property or, specifically, the Vineville Presbyterian Church, the Supreme Court of Georgia applied neutral principles and examined the deeds, the corporate charter of the Vineville church, and the Book of Church Order.63 After its examination, the Supreme Court of Georgia held that legal title to the church property vested in the local congregation; moreover, the Supreme Court of Georgia determined that the majority faction represented the local congregation.64 The United States Supreme Court confirmed that neutral principles of law are consistent with the First Amendment, which prohibits civil courts from interpreting religious doctrine and practice but does not require states “to adopt a rule of compulsory deference to religious authority in resolving church property disputes.”65 Yet, the United States Supreme Court warned civil courts to take special care when applying those neutral principles and scrutinizing particular church documents: if the application of neutral principles of law or the interpretation of any such document requires a civil court to resolve a religious controversy, it must defer to the authoritative ecclesiastical organization.66 Despite its acceptance of the application of neutral principles of law, the United States Supreme Court vacated the judgment of the Supreme Court of Georgia and remanded for further proceedings.67 The United States Supreme Court decided that the lower courts needed to determine whether the law of Georgia provided for a presumptive rule of majority representation (and, if so, neutral principles could be applied to confirm which faction held title to the church property), or whether the Presbyterian Church of the United States determined the church property holders according to its laws and regulations (and, if so, neutral principles could not be applied because the dispute would require the court to resolve matters of religious doctrine and polity).68
Consequently, civil courts can apply secular, objective, well‑established legal concepts to matters involving religious organizations, as long as such matters are not ecclesiastical in nature.69 Although neutral principles are available to adopt, absent any clear guidance from the Supreme Court on their application, particularly beyond church property disputes, state civil courts have largely split on whether to apply a deferential or a neutral-principles-of-law approach.70
iii. The Ecclesiastical Abstention Doctrine in Texas
In its earliest application in Brown v. Clark, the Supreme Court of Texas concluded that the civil courts could not decide disputes pertaining to ecclesiastical matters but could decide church property disputes.71 First, the Supreme Court of Texas analyzed the Constitution of the General Assembly of the Cumberland Presbyterian Church and cited to Watson when it determined that the action of the General Assembly of the Cumberland Presbyterian Church to reunite and unify with the Presbyterian Church of the United States was valid and binding on the civil courts.72 Next, to determine whether the Presbyterian Church in the United States could possess and use the property previously possessed and used by the Cumberland Presbyterian Church at Jefferson, which was a member of and under the control of the Cumberland Presbyterian Church, the Supreme Court of Texas examined the property deed.73 In finding that (1) no trust or limitation existed on the title and (2) the proper union of the Cumberland Presbyterian Church to the Presbyterian Church in the United States incorporated the Cumberland Presbyterian Church at Jefferson into the Presbyterian Church in the United States, the Supreme Court of Texas decided that the Presbyterian Church in the United States was entitled to possess and use the church property.74
In addition to church property disputes, the Supreme Court of Texas has considered the ecclesiastical abstention doctrine in relation to claims for intentional infliction of emotional distress, fraud, conspiracy, and defamation.75 However, like the United States Supreme Court, the Supreme Court of Texas has addressed, but not officially applied, neutral principles to matters outside church property.76
For example, in Tilton v. Marshall, the Supreme Court of Texas considered a petition for mandamus to determine whether the plaintiffs could sue Robert Tilton, the principal pastor of Word of Faith World Outreach Center Church; Word of Faith World Outreach Center Church, Inc.; and Word of Faith World Outreach Center Church, for fraud, conspiracy, and intentional infliction of emotional distress.77 The Supreme Court of Texas determined that the intentional infliction of emotional distress and related conspiracy claims, as well as certain fraud claims, involved an unconstitutional inquiry into the truth or falsity of religious beliefs or doctrine.78 For instance, inquiring into certain representations, such as those urging individuals to send $100 because “[a]ll through the Bible, men and women consistently worshipped God by giving offerings and sacrificial gifts,” would require the civil courts to entangle themselves in ecclesiastical matters; therefore, the ecclesiastical abstention doctrine barred the civil courts from hearing such claims.79
Id. at 679. In regard to some other fraud claims, however, the Supreme Court of Texas found that the ecclesiastical abstention doctrine did not bar the trial court from hearing such claims.80 Because Tilton alleged representations, such as personally reading, touching, and praying over plaintiffs’ prayer requests, based not on statements of religious doctrine or belief but promises to perform particular acts, the civil court could hear those claims.81 In its analysis of the claims, the Supreme Court of Texas noted that Article I, Section 6 of the Texas Constitution protects freedom of worship; nevertheless, the free exercise of religion does not protect actions that violate social duties or subvert good order.82
In comparison with Tilton, in Westbrook v. Penley, the Supreme Court of Texas decided that the ecclesiastical abstention doctrine barred the civil court from hearing all defamation, negligence, breach of fiduciary duty, and intentional infliction of emotional distress claims.83 Peggy Lee Penley told Pastor and Licensed Professional Counselor C.L. “Buddy” Westbrook, Jr. of CrossLand Community Bible Church that she had engaged in an extramarital sexual relationship and decided to divorce her husband.84 Penley allegedly divulged this information in a counseling session with Pastor Westbrook; Pastor Westbrook then recommended a family lawyer and mentioned church discipline, to which Penley allegedly confirmed her plans to resign from the Church.85 Shortly thereafter, Pastor Westbrook and church elders composed a letter to the congregation members of CrossLand Community Bible Church.86 In the letter, Pastor Westbrook and church elders described a three-step disciplinary process, explained that Penley intended to divorce her husband and that the divorce lacked any biblical basis, confirmed that Penley had engaged in a “biblically inappropriate relationship,” and recommended that the congregation shun Penley.87 The Supreme Court of Texas held that the ecclesiastical abstention doctrine barred the civil court from hearing the dispute because doing so would infringe on the internal affairs of the CrossLand Community Bible Church, including its decision to enforce disciplinary measures against a member of its congregation.88 Furthermore, the Supreme Court of Texas refused to expand the application of neutral principles to the claims in Westbrook because it deemed church discipline an “inherently religious function.”89 If the civil court subjected Pastor Westbrook to tort liability for disciplining a congregation member, the Supreme Court of Texas contended that the result could chill other religious organizations’ activities and, in effect, infringe on those organizations’ internal affairs.90
Accordingly, absent the application of neutral principles of law to matters outside of church property, such as matters involving religious organizations and defamation, the Supreme Court of Texas can actively defer to the decisions of religious organizations at an individual’s expense.91 This proved to be the case in In re Diocese of Lubbock.92
II. Facts and Procedural History of In re Diocese of Lubbock
A. Background
The Diocese of Lubbock ordained Deacon Jesus Guerrero in 1997,93 and he started his assignment at Our Lady of Grace Catholic Church in Lubbock, Texas.94 However, in 2003, the Diocese of Lubbock temporarily, and later indefinitely, suspended Deacon Guerrero after it received an allegation that he sexually assaulted an adult woman.95 That adult woman allegedly suffered from a history of mental and emotional disorders.96 Upon Deacon Guerrero’s request, the Diocese of Lubbock eventually reinstated him in July 2006.97 However, Deacon Guerrero did not return to Our Lady of Grace Catholic Church in Lubbock; rather, the Diocese of Lubbock reassigned him to San Ramon Catholic Church in Woodrow, Texas.98
Subsequently, the Diocese of Lubbock received a second allegation of sexual assault against Deacon Guerrero from the same woman, and thereafter, Bishop Placido Rodriguez permanently withdrew Deacon Guerrero’s diaconal faculties in November 2008.99 Despite the withdrawal of his diaconal faculties, Deacon Guerrero remains an ordained deacon of the Roman Catholic Church.100
In September 2018, approximately ten years after the Diocese of Lubbock withdrew Deacon Guerrero’s diaconal faculties, the Catholic Bishops of Texas agreed to release the names of clergy accused of sexual abuse of a minor.101 The Catholic Bishops of Texas sought to increase transparency and assist victims of sexual abuse throughout the fifteen dioceses of the Texas Catholic Church.102 Following a review of its files, on January 31, 2019, the Diocese of Lubbock compiled and released Names of All Clergy with a Credible Allegation of Sexual Abuse of a Minor (Names of All Clergy), a list that included the name of any priest or clergy against whom a “credible allegation” of sexual abuse of a minor had been raised since June 1983.103 The statement accompanying the list included “an apology to all of the abuse victims, especially minors,” confirmation that the Diocese of Lubbock enlisted “a retired law enforcement professional and a private attorney to review all clergy files,” and a definition for a “credible allegation” of sexual abuse of a minor.104 Nevertheless, the statement accompanying the list did not include any definition of “minor.”105
After the Diocese of Lubbock released the Names of All Clergy, it issued a press release.106 Furthermore, Chancellor Marty Martin, the Principal Notary and Administrative Manager for the Diocese of Lubbock, spoke to a local news station.107 In each of the aforementioned instances, as well as in instances preceding the list’s publication, the Diocese of Lubbock referenced “child” or “children” in place of, or in the same breath as, “minor” or “minors.”108
The Diocese of Lubbock included Deacon Guerrero on the Names of All Clergy because it received “credible allegations” of sexual abuse of a “minor” against him or, otherwise, “credible allegations” of sexual abuse of an adult and, allegedly, a severely bipolar woman in the early to mid‑2000s.109 Absent any definition for “minor” on the list, and following associations made between “child” and “minor,” Deacon Guerrero demanded that the Diocese of Lubbock retract his name from the Names of All Clergy.110 The Diocese of Lubbock then responded in a letter to Deacon Guerrero, stating that it published the list in accordance with the Charter for the Protection of Children and Young People (the Charter), which encourages additional transparency around allegations of sexual abuse and defines “minor” as an individual who “habitually lacks the use of reason.”111 While the Diocese of Lubbock refused to retract Deacon Guerrero from the Names of All Clergy, it published a revised list and clarification of the appropriate definition for “minor” on April 10, 2019.112
B. Procedural History
After the Diocese of Lubbock refused to retract his name from the Names of All Clergy, Deacon Guerrero filed suit against the Diocese of Lubbock for defamation and intentional infliction of emotional distress.113 In response, the Diocese of Lubbock filed a motion to dismiss under the Texas Citizens Participation Act (TCPA), stating that Deacon Guerrero’s suit pertained to its exercise of the right of free speech.114 In addition, the Diocese of Lubbock filed a plea to the jurisdiction, claiming that the ecclesiastical abstention doctrine barred the 237th District Court from exercising jurisdiction over the suit.115 The 237th District Court denied the motion to dismiss and the plea to the jurisdiction.116
Thereafter, the Diocese of Lubbock appealed the interlocutory order denying the motion to dismiss under the TCPA and filed an original petition for mandamus on the plea to the jurisdiction.117 The Seventh Court of Appeals in Amarillo affirmed in part and reversed in part the motion to dismiss under the TCPA.118 Furthermore, the court of appeals denied the petition for mandamus.119 According to the court, because the Diocese of Lubbock released the Names of All Clergy to the public, and thus, the dispute extended beyond the confines and no longer concerned the internal affairs of the Diocese of Lubbock but society-at-large, the ecclesiastical abstention doctrine did not apply to the defamation suit.120 Additionally, a defamation claim required knowing the perception of a person of ordinary intelligence.121 Since the Diocese of Lubbock referenced “child” or “children” both before and after publication of the list, and “minor” and “child” have a secular meaning to a person of ordinary intelligence, the court of appeals never needed to evaluate the meaning of “minor” under the Code of Canon Law.122
In the Supreme Court of Texas, the Diocese of Lubbock then petitioned for review of (1) the court of appeals’ retention of the defamation claim under the TCPA and (2) the court of appeals’ denial of the petition for mandamus on the plea to the jurisdiction.123 The Supreme Court of Texas reversed the court of appeals’s decision and conditionally granted the Diocese of Lubbock’s petition for mandamus on the plea to the jurisdiction.124 Because the jurisdictional question was dispositive, the Supreme Court of Texas directed the 237th District Court to dismiss the claims under the TCPA.125 Deacon Guerrero proceeded to file a petition for certiorari with the United States Supreme Court, which was ultimately denied on November 1, 2021.126
III. Holding and the Application of Neutral Principles of Law
A. Holding
The majority held that the ecclesiastical abstention doctrine barred the 237th District Court from hearing and ruling upon the suit because “the substance and nature of the deacon’s claims against his church [would] necessarily require the trial court to evaluate whether the Diocese properly applied Canon Law and [were] inextricably intertwined with the Diocese’s internal directive to investigate its clergy.”127 Because true statements cannot form the basis of a defamation claim, to resolve Deacon Guerrero’s defamation claims against the Diocese of Lubbock, the civil court would need to determine whether the diocese received a “credible allegation” of sexual abuse of a “minor.”128 The Diocese of Lubbock explained in its letter to Deacon Guerrero and in its Names of All Clergy with a Credible Allegation of Sexual Abuse of a Minor or a Vulnerable Adult: Revised April 10, 2019 that it based the scope of its investigation on the canonical meaning of “minor,” as provided in the Charter and the Code of Canon Law.129 Consequently, the majority found that whether the Diocese of Lubbock correctly included Deacon Guerrero on the list would require a civil court to evaluate the “canonical meaning of ‘minor’” and, therefore, would entail a secular investigation into the meaning of “minor,” and into the adult woman, including whether she met the requisite qualifications for a “minor” and made “credible” allegations against Deacon Guerrero.130 If required to do so, the civil court would interfere with the internal affairs of the Diocese of Lubbock and thus “reach behind the ecclesiastical curtain.”131
The majority focused not on the publication of the Names of All Clergy, but rather on the substance and nature of the claims and whether those claims implicated ecclesiastical matters.132 The Diocese of Lubbock conducted investigations into clergymen, published the list in accordance with the Charter, and applied the Code of Canon Law or otherwise engaged in internal management decisions based on directives from the Roman Catholic Church.133 Because the claims “inextricably intertwined” with the Diocese of Lubbock’s directive to investigate its clergy for credible allegations of sexual abuse of minors, and because investigations that relate to the conduct of clergymen are inherently ecclesiastical and pertain to the internal affairs, governance, or administration of a Church, the ecclesiastical abstention doctrine barred the suit from proceeding in the civil courts.134 In that same regard, the majority denied the application of neutral principles of law, or otherwise secular, objective, well-established legal concepts, to resolve the dispute.135
Since the claims “inextricably intertwined” with the investigation and the decision to include Deacon Guerrero on the Names of All Clergy, which would, in turn, “encroach[] on the [Diocese of Lubbock’s] ability to manage its internal affairs,” the majority determined that a civil court could not apply secular concepts to decide the dispute.136 Although the Diocese of Lubbock published and made public statements about the list, activities “rooted in broader church governance decisions” were shielded under the ecclesiastical abstention doctrine.137 If the Supreme Court of Texas curtailed the protections of the First Amendment because, for example, the Diocese of Lubbock chose to “shape its own faith and mission” and disclose to the public its plans to handle sexual abuse allegations, it would not only risk entanglement in a religious dispute, but would also permit the civil courts to secularize canonical terms and thwart religious organizations in establishing rules and regulations to investigate its clergy.138
B. Dissent
Justice Boyd, the lone dissenter in In re Diocese of Lubbock, disagreed with the majority, contending that the defamation claims “involve[d] statements made to the general public and [the] court [could] resolve the claim[s] on strictly secular grounds.”139 Justice Boyd acknowledged that the United States Supreme Court and the Supreme Court of Texas never previously addressed whether or when the ecclesiastical abstention doctrine applied to defamation claims; however, other state supreme courts decided not to apply the ecclesiastical abstention doctrine when the religious organization made statements to the general public and thus made statements outside the confines of that organization.140 Justice Boyd concluded that, once the Diocese of Lubbock broadcasted and published the statements to the general public through its website, a press release, and an interview with local media, the Supreme Court of Texas could no longer consider the conduct of the Diocese of Lubbock “strictly and purely ecclesiastical in its character” or “inherently ecclesiastical” as a matter of internal governance or discipline.141
Deacon Guerrero never complained about the decision of the Diocese of Lubbock to investigate its clergy or disclose the Names of All Clergy; nor did he complain about the directive the Diocese of Lubbock received to internally investigate its clergy.142 Rather, Deacon Guerrero complained about the inclusion of his name on the list, asserting that, in doing so, and in repeatedly referencing the sexual abuse of “children,” the Diocese of Lubbock defamed him and hurt his reputation.143 According to Justice Boyd, permitting religious organizations to make false and defamatory statements about its clergymen or congregation members in the name of internal governance or discipline provides such organizations the “unfettered right” to make such unsubstantiated claims without consequence.144
Furthermore, Justice Boyd confirmed that other state supreme courts decided not to apply the ecclesiastical abstention doctrine because the courts could resolve defamation claims through the application of neutral principles of law, even if the claim arose in a religious context.145 In In re Diocese of Lubbock, the Supreme Court of Texas should have permitted the application of these secular, objective, well-established legal concepts; when such concepts are applied, “a publication is defamatory (or libelous) if it ‘tends to injure a living person’s reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person’s honesty, integrity, virtue, or reputation.’”146 Moreover, whether a statement is defamatory depends on “‘how a person of ordinary intelligence . . . perceive[s]’ the statement, in light of all the surrounding circumstances.”147
Although the Roman Catholic Church has struggled to define and has continuously revised the definition of “minor,” Justice Boyd contended that the civil court need not have struggled to define or interpret the definition of “minor” to resolve the defamation claims.148 Because the Diocese of Lubbock referenced “child” or “children” in place of, or in the same breath as, “minor” or “minors” and included Deacon Guerrero on the Names of All Clergy, the public could have believed that Deacon Guerrero sexually abused a child.149 The determination that Deacon Guerrero sexually abused a child involved no shred of an examination into ecclesiastical polity or doctrine or, more specifically, the definition of “minor” under the Code of Canon Law.150 Justice Boyd warned that religious organizations cannot immunize themselves from civil liability based on important societal concerns, such as claims of child sexual abuse, simply by incorporating such concerns into internal church documents or religious doctrine.151 Ultimately, civil courts are “duty-bound” to resolve claims that are not prohibited under the First Amendment of the United States Constitution, such as Deacon Guerrero’s defamation claims.152
IV. Reasoning and Analysis
A. Neutral Principles of Law and Line Drawing
Although the application of the ecclesiastical abstention doctrine rightfully protects religious organizations from government encroachment in their internal affairs and governance, and defends the vital principle of separation of church and state, the sovereignty of religious organizations and the bounds of the ecclesiastical abstention doctrine are not limitless.153 Civil courts’ application of neutral principles of law should constrain the authority of religious organizations and prevent such organizations from receiving “blanket immunity from civil prosecution.”154
The ease inherent in deferring to religious organizations and the challenges inherent in applying neutral principles to matters involving religious organizations are well understood, particularly in the absence of any clear guidance from the United States Supreme Court.155 To defer in all instances to religious organizations and to permit those organizations to define the scope of their autonomy is easier because civil courts can “remain neutral among competing religious beliefs and practices.”156 In turn, however, religious organizations can consistently invoke the ecclesiastical abstention doctrine and claim some connection to theology, doctrine, or their internal affairs and governance regardless of the underlying claim.157 To apply neutral principles requires the civil courts to draw a line and determine where religious doctrine ends and secular judgments begin.158 Therefore, the application of neutral principles of law proves difficult in certain circumstances, especially since such line-drawing problems exist and some civil courts are wary to make a determination outside of particular disputes, such as those pertaining to church property.159 Yet, it is unfair to immunize religious organizations from civil liability for any potential question that touches on religion.160 By refusing to draw any line, the civil courts not only permit religious organizations to escape liability for social harms, but also renounce their duty to protect long-recognized rights, such as actions for defamation, and to say “what the law is.”161 Instead, civil courts should feel empowered to apply neutral principles to any dispute that touches on ecclesiastical matters, as long as they make judgments that are secular in nature and avoid entanglement in religious doctrine or faith.162
In In re Diocese of Lubbock, the Supreme Court of Texas should have permitted the application of neutral principles to the defamation suit; by applying such principles to a “legitimate, legal cause of action,” the Diocese of Lubbock would have been unable “to escape liability for a social harm merely because it claim[ed] that the harm it caused was a result of its exercise of religion” or involved its internal affairs.163
The civil courts could have easily evaluated the defamatory remarks, all of which revolved around the sexual abuse of a minor; as Justice Boyd detailed, numerous state courts have already managed to apply secular, objective, well-established legal concepts to tort claims and other claims beyond church property.164 For example, in Bowie v. Murphy, David M. Bowie of the Board of Deacons of Greater Little Zion Baptist Church asserted that Pastor James T. Murphy, Jr., and congregation members Vivian Pace, David Pace, LaJuanna Russell, and Audrey Thornton falsely accused Bowie of assaulting Thornton.165 Following the alleged assault, Pastor Murphy announced to congregation members at a meeting and sent them a letter stating that Bowie had assaulted Thornton.166 In addition, David Pace and Vivian Pace sent emails to numerous third parties accusing Bowie of assault.167 The Supreme Court of Virginia determined that the lower court could have applied neutral principles to the defamation claims, since such claims, as well as their veracity and impact on Bowie’s reputation, could be decided without addressing issues of faith and doctrine.168
Similarly, in Ira Banks v. St. Matthew Baptist Church, Pastor Clinton Brantley of St. Matthew Baptist Church announced to congregation members that trustees Ira Banks, James Bell, and Vernon Holmes mortgaged church property without his knowledge; mortgaged church property to purchase nearby, uninsured apartment buildings; mismanaged funds; and consistently deceived him.169 Pastor Brantley also urged the congregation members to remove the trustees from their positions.170 The Supreme Court of South Carolina determined that the lower court correctly applied secular concepts to the defamation claims because the truth or falsity of the defamatory statements could be ascertained without considering religious issues or doctrines.171 Furthermore, the Supreme Court of South Carolina confirmed that a tortfeasor could not be shielded from liability by committing torts “under the guise of church governance.”172 These two cases show that civil courts can successfully apply neutral principles to defamation claims; in each case, the civil courts could make judgments that were secular in nature and avoided entanglement in religious doctrine or faith.
Like the Supreme Court of Virginia in Bowie and the Supreme Court of South Carolina in Ira Banks, the Supreme Court of Texas should have approved the application of neutral principles to decide the defamation claims in In re Diocese of Lubbock. Deacon Guerrero accused the Diocese of Lubbock of defamation after it broadcasted Deacon Guerrero’s alleged sexual abuse of a “minor” in multiple forms of media both within and outside of the Church and, at the same time, referenced on multiple occasions “child” or “children.”173 Based on the history of child sexual abuse in the Roman Catholic Church, such statements undoubtedly impacted and negatively affected Deacon Guerrero’s reputation.174
That is because, like “assault” in Bowie or “mismanagement of funds” in Ira Banks, “sexual abuse of a minor” is not religious in nature.175 Assuredly, the Diocese of Lubbock asserted that its use of the word “minor” in its Names of All Clergy implicated the definition of “minor” as provided in the Code of Canon Law and the Charter.176 However, “sexual abuse of a minor” is not particular to religious doctrine, polity, or practice; rather, it is a secular concept to which secular audiences attach meaning.177 The Diocese of Lubbock failed to even provide any definition for “minor” on the original list; the Diocese of Lubbock only asserted the term’s connection to the Code of Canon Law post-publication.178 In this instance, the invocation of the ecclesiastical abstention doctrine not only appears arbitrary but also unwarranted. The ecclesiastical abstention doctrine is designed to prevent the civil courts from deciding disputes “strictly and purely ecclesiastical” in their character, not to shield religious organizations from civil liability for concepts and terminology that are secular in nature but conveniently included in their governing documents.179
Nevertheless, for the Diocese of Lubbock, an evaluation of the definition of “minor” would not only require the civil courts to resolve a religious question but would also interfere with the internal affairs and governance of the Church.180 As Justice Boyd recounted, the Supreme Court of Minnesota expressed a similar concern in Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered Augsburg Confession of Worthington.181 In that case, the Pfeils asserted claims for defamation and negligence against St. Matthew Evangelical Lutheran Church and Pastor Thomas Braun and Pastor Joe Behnke.182 Pastor Braun and Pastor Behnke signed and sent a letter to congregation members at a special voters’ meeting that listed numerous allegations against the Pfeils, including attacking, questioning, and discrediting the integrity of Pastor Braun, Pastor Behnke, and other leaders of St. Matthew; slandering, gossiping, and speaking about Pastor Braun and his wife, Pastor Behnke, and the St. Matthew Board of Elders; engaging in a “public display of sin”; and refusing to follow the commands and teachings of God’s word.183 The Supreme Court of Minnesota decided that engaging in a “statement‑by-statement analysis” of the remarks and determining which were religious or secular in nature would not only be difficult but would create an “excessive entanglement with religion.”184 Moreover, the Supreme Court of Minnesota worried that making such a determination would interfere with the internal affairs of the Church, specifically regarding membership and internal discipline.185
Like the Supreme Court of Minnesota, the Court of Appeals of North Carolina was also concerned about engaging in a statement-by-statement analysis of remarks “made between members of the same congregation” and entangling itself in internal disciplinary proceedings.186 In Lippard v. Holleman, Kim Lippard and Barry Lippard, members of Diamond Hill Baptist Church, alleged claims of defamation against Pastor Larry Holleman and Minister of Music Alan Hix.187 The alleged defamatory statements were made in connection with an internal dispute between Kim Lippard, who also served as church pianist and vocalist, and Alan Hix “over the reassignment of a music solo.”188 According to the bylaws of Diamond Hill Baptist Church, whenever an internal dispute arises between church members, “the pastor and the deacons will take every reasonable measure to resolve the problem in accord with Matthew 18.”189 Thereafter, Pastor Holleman began to regularly meet with Kim Lippard and Alan Hix to encourage a “reconciliation” between the two and improve their relationship “based on biblical passages.”190 Nevertheless, the deacons of Diamond Hill Baptist Church ultimately recommended that Kim Lippard be dismissed as church pianist, and Pastor Holleman and Alan Hix continually advocated for her dismissal to the congregation.191 In various letters, emails, and other statements, as well as ballots asking the congregation to “render a decision” as it pertained to Kim Lippard’s dismissal, Pastor Holleman and Alan Hix made numerous remarks, suggesting that (1) Kim Lippard failed to “acknowledge any personal responsibility for [her] failures,” and the recommendations made to dismiss her resulted from a failure to maintain “obedience to the scriptures as they regard reconciliation”; (2) Kim Lippard “had yet to acknowledge any wrongdoing” in the dispute, which stemmed from following Ephesians 4:3; (3) Kim Lippard’s “unwillingness to admit to any wrongdoing” and “commit unconditionally to the process of reconciliation” could be classified “as wrong according to the Scriptures”; and (4) Barry Lippard and Kim Lippard were “out of fellowship with God and [Diamond Hill Baptist Church].”192 The Court of Appeals of North Carolina held that determining the truth or falsity of these and other statements would require it to delve into “an internal dispute regarding ecclesiastical matters.”193
Unlike in Pfeil or Lippard, no “excessive entanglement with religion” or interference with internal disciplinary proceedings or church governance existed in In re Diocese of Lubbock.194 First, in In re Diocese of Lubbock, no “statement-by-statement analysis” was required to determine the secular versus religious nature of the defamatory statements, all of which revolved around “sexual abuse of a minor.”195 Second, the defamatory statements made about Deacon Guerrero occurred outside of any internal disciplinary proceedings or church governance.196 The Diocese of Lubbock permanently withdrew Deacon Guerrero’s ability to perform sacramental functions approximately eleven years prior to the publication of the Names of All Clergy.197 Additionally, unlike in Pfeil and Lippard, the Diocese of Lubbock broadcasted and published the statements to third parties outside of the congregation.198 In Pfeil, the Supreme Court of Minnesota even agreed that it would be troubled by the statements Pastor Braun and Pastor Behnke made if disseminated to individuals outside the Church.199
Albeit sometimes difficult to draw the line, civil courts should nonetheless apply neutral principles to any dispute not “strictly and purely ecclesiastical” in character.200 Otherwise, the civil courts risk further expanding the bounds of the ecclesiastical abstention doctrine and elevating the status of religious organizations in society and, at the same time, threatening long‑recognized civil rights.201
B. Consequences of the Ruling
The ruling of the Supreme Court of Texas in In re Diocese of Lubbock could produce negative consequences for public policy.202 According to CHILD USA, a national nonprofit think tank devoted to ending child abuse and neglect, the ruling of the Supreme Court of Texas in In re Diocese of Lubbock could enable abusers to conceal their misconduct and threaten, defame, or discredit victims and their family members.203 The abuser could effectively ruin the victim’s reputation, as well as the reputation of the victim’s family, both inside and outside of the congregation without consequence.204
Furthermore, victims’ claims that religious organizations failed to investigate, discipline abusers, or implement their purported policies will continue to fall on deaf ears.205 For example, in Doe v. Roman Catholic Diocese, Doe claimed that the Diocese of Dallas committed fraud when it failed to comply with the Diocese’s Sexual Misconduct Policy.206 Amongst other misrepresentations, Doe alleged that:
Bishop Farrell did not report John Doe’s sexual abuse to the diocesan Review Board; . . . Bishop Farrell and the Dallas Diocese made no effort to determine whether John Doe’s sexual abuse constituted sexual abuse of a minor or vulnerable adult; and . . . [t]he Dallas Diocese did not report Father [Timothy] Heines’[s] sexual abuse of John Doe to the Congregation of the Doctrine of Faith.207
According to the Fifth Court of Appeals in Dallas, determining whether the Dallas Diocese acted fraudulently would “necessitate a secular investigation” into (1) the meaning of canonical terms, such as “minor” and “vulnerable adult” and (2) a religious organization’s choices in investigating, disciplining, and regulating its formal leaders, thereby calling into question “the internal decision making of a church judicatory body.”208 Even though the Dallas Diocese promised to perform certain acts in relation to the Sexual Misconduct Policy and represented to the “public sphere” its promise to perform such acts, the court, citing to In re Diocese of Lubbock, maintained that it could not apply neutral principles of law since judicial review would “impermissibly interfere with a religious organization’s ability to regulate the character and conduct of its leaders.”209 Unsurprisingly, the ruling in In re Diocese of Lubbock has only further solidified protections for religious organizations.
As Justice Boyd emphasized in his dissent in In re Diocese of Lubbock, matters of “important societal concern” that affect the whole of society, such as child sexual abuse, are not particular to any religion.210 By failing to apply neutral principles and consider a legitimate and secular cause of action, the Supreme Court of Texas further shielded religious organizations from civil liability in the state and afforded those organizations increased protection from consequences that ultimately affect individuals beyond their confines.211
Conclusion
Absent the application of neutral principles to ecclesiastical matters, and particularly those matters that do not require any interpretation of religious doctrine or faith, the civil courts stand to continually expand the bounds of the ecclesiastical abstention doctrine, further protect religious organizations from civil liability, and elevate their status in society.212 The ruling of the Supreme Court of Texas in In re Diocese of Lubbock provides but one poignant example. The principles of the separation of church and state and religious freedom are important and deserve protection; however, the ecclesiastical abstention doctrine was not designed to protect just any matter that touches on religion but matters “strictly and purely ecclesiastical” in their character.213 It remains the duty of the civil courts to recognize “[t]he right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt”; it remains the duty of the civil courts to say “what the law is.”214 Although the faithful may yearn for the day when “God’s unlimited, perfect judgment” reigns throughout the land, “[t]hat day is yet to come,” especially in the courts of the United States.215