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A question of church governance

Religious Liberty | Religious groups support Texas diocese in defamation case
by Steve West
Posted 5/05/20, 03:13 pm

A Catholic diocese in Texas has won the support of Protestants and Jews in a state Supreme Court case that deals with a church’s right to self-governance. Though the case is about how the diocese handled a sex abuse allegation, the ruling could have repercussions for religious autonomy.

Following the recommendations of the 2002 Charter for the Protection of Young People from the U.S. Conference of Catholic Bishops, all 15 Texas dioceses last year published lists of clergy facing credible accusations of abusing minors. When the Diocese of Lubbock published Jesus Guerrero’s name on its list, the former deacon sued for defamation. The church had disciplined him in 2009 following an accusation that he abused a woman. He argued that she was not a minor. Though state law considered her an adult, the Catholic church’s definition of a “minor” includes a person who lacks the mental faculties of an adult.

Guerrero prevailed, but the diocese and a broad array of lawmakers and religious organizations—among them the Baptist General Convention of Texas and the Jewish Coalition for Religious Liberty—are asking the Texas Supreme Court to overrule the lower court.

“Can a religious organization freely interact with its clergy according to its own particular religious beliefs, or will the government and private litigants be empowered to rummage through churches’ internal affairs?” asked Eric Rassbach, an attorney with the religious liberty law firm Becket, which represents the Diocese of Lubbock. In a brief, Rassbach argued if the Texas Supreme Court lets the ruling stand, churches could hesitate to name abusers for fear of government officials second-guessing them.

An adverse ruling could significantly affect other areas of church autonomy, including the selection of leaders, doctrinal decisions, and how churches discipline their members, according to another Becket attorney, Will Haun. He said judges are overstepping their authority “if churches aren’t free to speak to their members about their own clergy and according to their own laws, or if a worship service that is livestreamed could lead to a lawsuit for millions of dollars because of something a pastor says about a member or other clergy member.”

Rassbach pointed to the U.S. Supreme Court’s 1871 decision in Watson v. Jones. The justices in that case barred lower courts from considering claims that required analysis of “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.” The government should not allow courts to overrule established canon law or church policy about topics such as the definition of a minor or publication of abusers’ names, Rassbach argued.

Just like in the many conflicts over the coronavirus restrictions and religious gatherings, “religion and government are trying to find careful, creative balances to the protection of religious liberty and other governmental interests,” Haun said, adding that “allowing a civil court to second-guess a religious determination is not a careful balance.”

Editor’s note: WORLD corrected this report to note that Becket represents the Diocese of Lubbock.

Associated Press/Photo by Ted S. Warren (file) Associated Press/Photo by Ted S. Warren (file) Washington Gov. Jay Inslee

Seeking balance

In Washington state, a Republican gubernatorial candidate is challenging his state’s temporary ban on all gatherings, including religious ones. Joshua Freed filed a motion on Wednesday asking a federal court to stop Democratic Gov. Jay Inslee’s Stay Healthy Proclamation, which he recently extended until May 31. The order prohibits gatherings of any size regardless of safety precautions.

Freed contends the order prevents him from meeting with one other person to pray and read Scripture, even though they would meet outside, observe social distancing guidelines, and wear personal protective equipment. He told KTTH-AM the order did not shut down marijuana shops, “and yet, if you are feeling some fear and anxiety and want to go pray with your religious leader, you’re prohibited from doing so.”

The U.S. District Court in the Western District of Washington will hold a hearing on Freed’s motion on Friday.

Courts have struck down restrictions on religious gatherings in other states, and local governments have revised their orders in the face of lawsuits. Governors in Kansas, Illinois, and Tennessee issued updated orders or guidance allowing churches to meet for worship, provided they follow social distancing guidelines. Virginia, California, Maryland, and New Jersey all face new challenges to church gathering restrictions. The U.S. Department of Justice filed a statement late Sunday in support of a church in Chincoteague, Va., suing for the right to meet in person as long as it takes safety precautions.

Some courts have favored the stay-at-home orders. A U.S. District Court judge in Illinois on Sunday declined to set aside the state’s 10-person gathering ban.

Maryville Baptist Church in Louisville, Ky., on Friday asked the 6th U.S. Circuit Court of Appeals to block Democratic Gov. Andy Beshear’s “no religious services order.” The appellate court on Saturday struck down the state’s ban on drive-in worship services but declined to extend its ruling to in-person gatherings even while noting the constitutional issues: “The breadth of the ban on religious services, together with a haven for numerous secular exceptions, should give pause to anyone who prizes religious freedom.” —S.W.

Facebook/2nd Infantry Division Facebook/2nd Infantry Division Col. Moon H. Kim (right) during a training session for Republic of Korea Army chaplains in November

Sharing encouragement? Not allowed

A senior U.S. military chaplain in South Korea is under fire for sending a copy of theologian John Piper’s new book, Coronavirus and Christ, to 35 other chaplains under his command. In an email accompanying an attached PDF of the book, U.S. Army Col. Moon H. Kim wrote, “This book has helped me refocus my sacred calling to my savior Jesus Christ to finish strong.”

Mikey Weinstein, president of the Military Religious Freedom Foundation, sent U.S. Defense Secretary Mark Esper a letter on Wednesday asking the military to discipline Kim. He criticized Piper for saying the virus can be God’s judgment on a range of sins, including homosexuality, even though Piper prefaced his comment by saying this “does not mean that all individual suffering is a specific judgment for personal sins.”

Mike Berry, general counsel for First Liberty Institute, said Kim was within his rights to send the email.

“Our brave service members should be offended that Mikey Weinstein thinks they are so delicate and frail that they are incapable of hearing something with which they might disagree,” Berry told The Christian Post. —S.W.

Associated Press/Photo by Keith Srakocic (file) Associated Press/Photo by Keith Srakocic (file) A protester in Pittsburgh

Supreme bid

A group of Pennsylvania businesses is asking the U.S. Supreme Court to overturn Democratic Gov. Tom Wolf’s order closing nonessential businesses. The Pennsylvania Supreme Court denied their request to stay Wolf’s order in a 4-3 decision on April 13. The challengers contend that the restrictions were enacted without due process protections and violate rights of free speech and assembly.

Writing for the dissent, Pennsylvania Chief Justice Thomas Saylor noted that the “temporary” closures “may in fact not be so for businesses that are unable to endure the associated revenue losses.”

Wolf, in response to an order by Justice Samuel Alito, filed a 43-page brief on Monday calling on the court to reject the request. But Alito’s demand for a response could suggest he would like to hear the case. Five justices must agree in order to stay a lower court’s decision. —S.W.

Protest ban challenged

California Gov. Gavin Newsom’s order for the state’s highway patrol to stop issuing permits for protests at the state Capitol in Sacramento is a “gross abuse of power,” according to two individuals who filed a federal civil rights lawsuit last week. Newsom, a Democrat, gave his directive after hundreds of people turned out to protest the state stay-at-home order on April 20. The plaintiffs, Ron Givens and Christine “Chris” Bish, who were unable to get protest permits, contend that the governor’s order violates constitutional rights to free speech and to assemble and petition the government. —S.W.

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Steve West

Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C. Follow him on Twitter @slntplanet.

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  •  CaptTee's picture
    Posted: Wed, 05/06/2020 12:23 pm

    The Military Religious Freedom Foundation has yet to publicly state a position in a case that was in favor of "military religious freedom".

    They should be sued for false advertizing.

  • Clint Williams
    Posted: Wed, 05/06/2020 05:27 pm

    Thank you for bringing the story about chaplain Kim to our attention. Please let us know if garrison officials take any action, either to discipline or exonerate him. I've made a mental note that the Military Religious Freedom Foundation appears to be one of those organizations that is actually opposed to the thing its name suggests advocacy for, much like Planned Parenthood.

  • Narissara
    Posted: Thu, 05/07/2020 03:22 pm

    I would be very curious to know if any studies have ever been done concerning the morale among units assigned Christian chaplains compared to units assigned chaplains of other persuasions (Buddhism, Islam, Wicca, etc.) or those with no chaplain assigned.