How to Avoid a Lawsuit When Exercising Church Discipline
“I’ll see you in court” is a common phrase heard in movies and T.V. shows, but when uttered to a pastor or in a church it is the cause of great anxiety and dread. Unfortunately, church discipline and the departure of a pastor provide fertile grounds for lawsuits. Claims of defamation, tortious invasion of privacy, and intentional infliction of emotional distress often rear their ugly heads when a church attempts to discipline or remove an unrepentant member or pastor. Has your church taken the necessary steps to prevent a legal disaster?
The ability to discipline a member of the church is a central part of any ministry. Similarly, calling out and removing a misbehaving pastor is of crucial importance to a church. When a member or a pastor is accused of moral failing, the church’s next steps, if not made carefully, may open it to legal liability and expensive lawsuits.
When a church member is disciplined or a pastor is removed, allegations of wrongdoing or immoral behavior are almost always the impetus for the discipline. The accused’s personal life is often probed, and questions are raised about their decisions. If these allegations are true, and in the church’s eyes the member or pastor is rightly disciplined, the member could still turn around and accuse the church of defamation, invasion of privacy, intentional infliction of emotional distress and other torts arising out of the discipline process. And if these allegations are false, a member or pastor would be even more likely to bring legal actions if the person was disciplined or terminated.
How do you protect your church’s integrity by continuing to discipline errant members and, at the same time, protect your church from lawsuits?
1. A Coherent Discipline Policy
First, a church needs a coherent discipline policy. This policy should be in the bylaws, and clearly state under what conditions discipline may take place, and by whom. Whether a vote of the congregation is necessary for disciplinary actions up to and including termination needs to also be stated in the bylaws. The policy should strive to protect the privacy of the member or pastor when at all possible. This is especially important in the early stages of investigating allegations of wrongdoing.
2. A Consistent Enforcement of Policy
Second, this policy must be enforced in a consistent manner. All members must be subject to the disciplinary procedures, with no favoritism. Applying the discipline policy to some members but not others undermines the integrity of the church’s discipline policies, weakening their position in litigation.
3. A Covenant Signed by Members
Third, all members must agree to abide by the disciplinary measures. This is done most effectively by asking all members to sign a covenant with the church, promising to abide by the constitution, bylaws, and other policies of the church. The covenant can also include a statement of faith. For example many churches include a statement that marriage is between one man and one woman followed by a statement that the church members agree and that all sexual activity outside of marriage is prohibited. The inclusion of a code of conduct is a helpful tool that reinforces statements of faith made in the covenant. All members should be required to sign the covenant, as a strong covenant adopted by the entire congregation lays the foundation for effective discipline.
4. Christian Mediation and Arbitration
Fourth, the Covenant and bylaws should include a statement that all members agree to submit any conflict between them and the church or its representatives to Christian mediation and arbitration. This means that when a member has a disagreement with the church, he or she will be required to go to Christian mediation, rather than to court. This protects the church from airing its “dirty laundry” in public and significantly reduces its legal costs. This is a powerful provision, and a necessary one.
However, enforcement of this provision can be tricky if the member did not sign a covenant. This is an issue that confronts churches whose existing members don’t want to sign a newly drafted covenant for reason that they have never been required to sign a covenant before and don’t want to sign one now. A church can attempt to “grandfather” these existing members into the covenant, thereby covering them by the mediation clause and other statements in the covenant, constitution, and bylaws. This may work in some cases. But when a member files a claim in court against the church, going through the process of proving in court that the member is bound by the mediation clause can be a difficult and expensive ordeal. It is far easier (and more probable to lead to dismissal of the member’s claim) to walk into court with a covenant signed by that member and ask the judge to dismiss the case.
These are just four steps your church can take to protect itself from claims arising out of discipline processes. Is your church ready? Consult with the experienced attorneys at Simms Showers LLP to determine if your church has a sufficient risk management plan.
Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Robert Showers or Elyse Smith at ems@simmsshowerslaw.com for legal advice that will meet your specific needs.
