Discrimination: The word conjures up images of minority races and ethnic groups subjected to mistreatment. Jews in Germany in the 1930s. Blacks in America through the 1960s. And scores of others in different times and places in the pages of history.
But there are other images, ones which abound in America today. Images where race is not the issue.
Asifa is an attorney from Illinois who moved to California, studied for and passed the bar exam, and then sought work in Los Angeles. She liked the atmosphere and professionalism of the federal courts, and applied for a job at the U.S. District Court in Los Angeles.
But Asifa is a Muslim. And, owing to the years-old xenophobic concerns of a single judge, the courthouse personnel turned down Asifa on the basis of her strong religious beliefs. Muslims, it seemed, were inclined towards being “terrorists” and “anti-government.”
Asifa’s was only one example of a form of discrimination which is rampant and both tolerated and encouraged by the courts.
Bruce, a parishioner of Crystal Evangelical Free Church in Minnesota, paid regular tithes to his church. His belief, and the Church’s, was that the Bible required him to do this at all times, regardless of adversity. And this he did, continuously, for eight years.
However, Bruce suffered a heart attack and his business fell on hard times; he was forced to file for bankruptcy.
Bruce certainly wasn’t expecting what happened next. His bankruptcy trustee told him that he not only had to stop tithing, he had to recoup all monies he had given to his church for the year prior to his bankruptcy. And the trustee, sanctioned by the court, proceeded to initiate proceedings against the Church to recover the funds.
The court sided with the trustee, and ordered the Church to turn in the $13,000 Bruce had donated before his bankruptcy. Bruce and the Church appealed, and the case is now pending in the United States Court of Appeals for the 8th Circuit. The Department of Justice even joined in the case against Bruce and the Church. It took intervention by the President of the United States who learned of the case and directed the department to withdraw before Bruce and the Church were able to get out from under the weight of the federal law enforcement bearing down on them. The proceedings have cost the Church nearly $250,000 to date, and the outcome of the case has yet to be determined.
Other cases abound. Couples are denied apartments on the basis of the religious beliefs of the landlord — with the concurrence of the courts. Religious lands of the Native Americans are desecrated for the construction of extended public utilities — wition has been ongoing in America for decades. But the next predictable level is now with us — churches, religious organizations and their clergy are now under siege.
Imagine undertaking a demanding profession — one that requires substantial sacrifice — in the interest of helping others in the most meaningful way possible. The hours are long, the pay minimal, the material benefits slight.
But then imagine that this walk of life causes you to be perceived as “easy prey” by eager lawyers seeking your employer’s insurance through a judgment or settlement resulting from specious claims. And what if the courts gave you little protection, even knowing the work that you do?
Unfortunately, if you are a clergyman today, the above may require no imagination at all.
A tide of litigation has been rising against clergy and congregations of all denominations. It has resulted in serious breaches in the wall of the First Amendment and the imposition of financial hardship on religious institutions which struggle to stay afloat amid mounting legal costs and ever-higher insurance premiums.
Time-honored religious disciplinary procedures have fallen into disarray or disuse as clergy and lay leaders alike find their hands tied when they attempt to excercise these traditional means of maintaining church moral and ethical standards. In earlier times, a man who had committed adultery could be disciplined within his church by having his offenses and his penance announced to the congregation; today, if such a religious penalty were imposed, the adulterer would probably file suit against his church for defamation — as has happened in several cases around the country to date.
Ken Sande, executive director of the Institute for Christian Conciliation, told Freedom, “People are much less reticent to sue a church these days than they were 15 or 20 years ago.”
Two decades ago, he said, courts would not entertain such actions, and most attorneys would never take on cases against churches. But churches today are frequent targets, with thousands of lawsuits filed against religions on a range of issues.
“A generation ago, people would sue for reinstatement,” Sande said. “Today they sue for a million dollars.”
“There was a time when churches were viewed as immune to suits,” said Hugh White of Brotherhood Mutual in Fort Wayne, Indiana, a large national insurer of churches. Now, he said, “there’s almost an antagonism” toward them.
The first prominent “clergy malpractice” lawsuit began in March 1980, after Kenneth Nally committed suicide at the age of 24 and his parents sued Grace Community Church for $1 million — breaking the wall of immunity that had long sheltered clergy from the tidal wave of tort litigation.
Nally had joined Grace Community, an independent evangelical church, in 1974 while studying at UCLA. His parents were Roman Catholic.
The plaintiffs charged that one of the church’s pastors had discouraged Nally from seeing a psychiatrist or psychologist.
Court records demonstrated, however, that Nally had seen a psychiatrist and other mental health professionals in the period leading to his death, and had also taken a prescribed psychiatric drug, Elavil, known to increase chances of suicide.
Shortly after the suit was filed, Samuel Ericsson, counsel for the defense, said, “The true facts...will completely exonerate the church, its pastor and staff of any wrongdoing.”
The church’s senior pastor, the Reverend John MacArthur, stated, “The Bible is on trial, Biblical counseling is on trial.”
The outcome at the trial court level was shocking. The church and its pastor were found guilty of malpractice and negligence and saddled with a multimillion-dollar judgment which was almost certain to bankrupt them.
Groups representing more than 6,000 churches and religious organizations rallied in support of Grace Community Church and, 10 years later, Ericsson was proven right. Ultimately, on April 3, 1989, the U.S. Supreme Court let stand a November 1988 ruling by the California Supreme Court which dismissed the suit, thus ending a decade of costly litigation.
But that 10-year breach in the wall of First Amendment protection was broadly and eagerly exploited. Money-motivated “plaintiffs” and lawyers filed scores of lawsuits, and the ball hasn’t stopped rolling to date. Clergy have been forced to turn to insurance as a shield against the threat of costly litigation.
And though Grace Community Church and its clergy were ultimately vindicated, it was not without a long and expensive legal ordeal.
As the Nally case neared its final stages, the Reverend William North, then president of the American Association of Pastoral Counselors, commented on the vulnerability of clergy of all denominations: “The relationship between the clergy person and the parishioner was sacrosanct. You just didn’t think of suing your priest or your rabbi or your minister.”
Oliver Thomas of the National Council of Churches and past general counsel for the Baptist Joint Committee on Public Affairs in Washington, D.C., cut right to the point: “They are after us just like everybody else, and we have to be prepared to do our ministry in a very litigious society.”
In the mid 1980s, some 40,000 ministers in the United States purchased clergy malpractice insurance. That number has climbed sharply in the face of frivolous lawsuits and other attacks against a wide variety of religions. According to one insurance company, the number of churches to which it provides clergy malpractice coverage increased from roughly half in the 1980s to virtually 100 percent today.
In the interest of providing a medium for amicable settlements out of court, the Institute for Christian Conciliation maintains a national panel of mediators and arbitrators, trained and certified to assist in resolving disputes; a nonprofit organization, it can be reached at (406) 256-1583.
While this is a constructive step, it is of value to remember that a clergy member’s responsibility is, and always has been, to provide spiritual comfort, care and religious guidance to those who have come to them for help.
Certainly, those few wayward members of the clergy who engage in actual crimes — embezzlement, assault or the like — should be held accountable. After all, every walk of life has its criminals. But fictitious, money-motivated claims make a mockery of justice and must not be tolerated.
While the country and its politicians are in an uproar over the state of the courts and the exorbitant costs of litigation, proposing curbs and limitations, little attention is paid to this aspect of the problem which faces the courts — an aspect that is cracking the foundation of one of America’s most valued and cherished institutions: religion.
