On appeal from the District Court, Tulsa County; Tony M. Graham, Judge.
The opinion of the court was delivered by: OPALA, Vice Chief Justice.
Rehearing Denied May 9, 1989.
MARIAN GUINN, PLAINTIFF-APPELLEE,
THE CHURCH OF CHRIST OF COLLINSVILLE, OKLAHOMA, A NON-PROFIT CORPORATION; ALLEN CASH, TED MOODY AND RON WITTEN, DEFENDANTS-APPELLANTS.
On appeal from the District Court, Tulsa County; Tony M. Graham, Judge.
Thomas Dee Frasier, Steven R. Hickman, Messrs. Frasier, Frasier & Gullekson, Tulsa, for plaintiff-appellee.
Deryl L. Gotcher, Roy C. Breedlove, Graydon D. Luthey, Jr., Messrs. Jones, Givens, Gotcher, Doyle & Bogan, and Truman B. Rucker, Jr., King, Rucker & Finnerty, Inc., Tulsa, for defendants-appellants.
JUDGMENT IS REVERSED AND CAUSE REMANDED.
The opinion of the court was delivered by: OPALA, Vice Chief Justice.
¶1 The dispositive first-impression question presented is whether a state forensic inquiry into an alleged tortious act by a religious body against its former member is an unconstitutional usurpation of the church's prerogatives by a secular court and hence prohibited by the First Amendment. We answer in the negative.
¶2 The plaintiff-appellee, Marian Guinn [Parishioner], and her children moved to Collinsville, Oklahoma in 1974. While staying with her sister, Parishioner became acquainted with the defendants-appellants, Ron Whitten, Ted Moody and Allen Cash [collectively referred to as the "Elders"] in their capacities as Elders of the Collinsville Church of Christ. A few weeks later, Parishioner became a member of that congregation. Both Parishioner and the Elders agree that the first few years of Parishioner's membership reflected the mutual support inherent in a relationship between a religious organization and one of its members. Parishioner attended services and the congregation extended to her a financial and emotional helping hand.
¶3 In 1980 the Elders confronted Parishioner with a rumor that she was having sexual relations with a male Collinsville resident [companion], who was not a member of the Church of Christ. According to the Elders, they pursued this rumor in order to uphold their doctrinal commands which require that they, as church leaders, monitor the congregation members' actions, as well as confront and discuss problems with any one who is "having trouble." The Church of Christ follows a literal interpretation of the Bible which serves as the church's sole source of moral, religious and ethical guidance. When confronted with the allegation, Parishioner admitted violating the Church of Christ's prohibition against fornication. As a transgressor of the denomination's code of ethics, Parishioner became subject to the disciplinary procedure set forth in Matthew 18:13-17. *fn1
¶4 The Elders carried out the biblically-mandated disciplinary procedure in three stages, with the entire process lasting more than a year. First, the Elders approached Parishioner and her children in a laundromat and requested that she appear before the church and repent of the fornication sin. They also suggested that Parishioner refrain from seeing her companion.
¶5 The second of the three "meetings" was held at the church. According to the Parishioner, her attendance dropped considerably after the Elders initially confronted her in the laundromat. The Elders had called Parishioner and told her that if she did not come to church to discuss her continuing relationship with her companion they would come to her house. Although the bad weather that night made the Parishioner anxious about leaving her children alone, she decided to meet with the Elders at the church. They instructed her to stop seeing her companion. Parishioner agreed this was the best solution because her relationship with him was deteriorating.
¶6 The third and final meeting took place on the driveway outside the Parishioner's home when she was under suspicion of having been with her companion. The Elders parked near Parishioner's house and awaited her arrival. When Parishioner's car pulled into the driveway, the Elders approached it and told Parishioner and her companion that if she did not appear before the congregation and repent of her fornication sin, the members would "withdraw fellowship" *fn2 from her.
¶7 On September 21, 1981, a few days after the third meeting, the Elders sent Parishioner a letter warning her that if she did not repent, the withdrawal of fellowship process would be commenced. At this point Parishioner realized the Elders intended to inform the congregation of her sexual involvement with the companion. She sought legal advice in an effort to ascertain her rights. On September 24 her lawyer sent the Elders a letter and advised them not to expose Parishioner's private life to the Collinsville congregation which comprised approximately five percent of the town's population. The Elders did not heed her lawyer's advice.
¶8 On September 25, 1981 Parishioner wrote the Elders a letter imploring them not to mention her name in church except to tell the congregation that she had withdrawn from membership. The Elders ignored Parishioner's requests. On September 27 they read to the congregation the September 21 letter they had sent to Parishioner. During the same service the Elders advised the congregation to contact Parishioner and to encourage her to repent and return to the Church. The Elders also told the congregation that should their attempts fail, the scriptures Parishioner had violated would be read aloud at the next service and the withdrawal of fellowship proceeding would begin.
¶9 Parishioner met with one of the Elders personally and again attempted to dissuade him from divulging her private life to the congregation. The Elder told her that withdrawing membership from the Church of Christ was not only doctrinally impossible but it could not halt the disciplinary sanction being carried out against her. The Church of Christ believes that all its members are a family; one can be born into a family but can never truly withdraw from it. A Church of Christ member can voluntarily join the church's flock but cannot then disassociate oneself from it.
¶10 According to one of the Elders, Parishioner was publicly branded a fornicator when the scriptures she had violated were recited to the Collinsville Church of Christ congregation on October 4. As part of the disciplinary process the same information about Parishioner's transgressions was sent to four other area Church of Christ congregations to be read aloud during services.
¶11 For the torts of outrage and invasion of privacy Parishioner recovered actual and punitive damages from the three Elders and from the Collinsville Church of Christ. *fn3 Parishioner alleged in her claim of outrage that when disciplining her the Elders employed methods which caused her emotional anguish. Her claim of invasion of privacy was cast in two theories. Firstly, Parishioner asserted the Elders intruded upon her seclusion by carrying out against her religious disciplinary measures which were highly offensive, unreasonable and intrusive. Secondly, Parishioner claimed the Elders unreasonably publicized private facts about her life by communicating her transgressions to the Collinsville and the four other area Church of Christ congregations. After overruling the Elders' demurrers and their motion for summary judgment, the trial court submitted the case to the jury; its verdict was in favor of Parishioner and against each of the three individual Elders. The parties stipulated the Elders were at all times acting as agents of the Church of Christ corporation and thus the trial court found the judgment against the Elders also was a judgment against the Collinsville Church of Christ. The jury awarded $205,000 in actual and $185,000 in punitive damages; the trial court then added $44,737 in prejudgment interest.
THE RELIGION CLAUSES OF THE FIRST AMENDMENT, WHICH PROHIBIT BOTH STATE AND FEDERAL GOVERNMENTS FROM INHIBITING OR SUPPORTING CITIZENS' RELIGIOUS INTERESTS, WERE WRITTEN IN AN EFFORT TO CREATE AN ENVIRONMENT IN WHICH "MANY TYPES OF LIFE, CHARACTER, OPINION AND BELIEF . . . [COULD] DEVELOP UNMOLESTED AND UNOBSTRUCTED." *fn4
¶12 Many of our forefathers who left England and its governmentally established church for America did so in pursuit of religious freedom. Before the adoption of the Constitution of the United States those who had risked life and limb in an effort to explore the possibilities of a free world found themselves "legislat[ing] not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well." *fn5 To ensure the religious freedom for which so many of the colonists had struggled, the first session of the first Congress adopted the First Amendment *fn6 to the constitution of the United States:
"Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship . . . I contemplate with sovereign reverence that act of the whole American people which declared that their Legislature should `make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State." *fn7
From its inception the First Amendment has required that the government "be a neutral [element] in its relations with groups of religious believers and non-believers." *fn8 In other words, state power should be used neither to handicap religions nor to favor them. *fn9
¶13 Since the First Amendment's ratification in 1791, the United States Supreme Court has been exploring its scope and effect in light of the relationships and controversies which invoke its application. At its core the First Amendment shields and protects religious liberties of citizens from both state *fn10 and federal governmental interference:
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." *fn11
In its exhortation of the values protected by the First Amendment's Free Exercise Clause, the Court has stated that "[t]he essential characteristic of these [religious] liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed." *fn12 Under the Establishment Clause, neither the state nor the federal government can "force . . . [or] influence a person to go or to remain away from church against his will or force him to profess a belief or disbelief in any religion." *fn13 [Emphasis supplied.]
¶14 Depending upon whether the governmental intrusion into the sacred realm [775 P.2d771] of religious liberties is by way of judicial enforcement of legislative mandate, *fn14 or judicial determination of the "proper" standards of ecclesiastical conduct within a particular sect, *fn15 the Court has developed different means of inquiry into the constitutionality of a challenged action. If the alleged interference with religious freedom is effected by a statute or by judicial enforcement of a statute, the Court balances what must be a "compelling" governmental interest against the asserted First Amendment liberty. Governmental "regulation" is justified only when there is a clear and present danger of riot, disorder, interference with traffic upon the public streets, or any other immediate threat to public safety, peace, or order, appears. *fn16 "[I]n this highly sensitive constitutional area, `[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.'" *fn17
¶15 On the other hand, if the interference with a protected religious liberty is accomplished through civil forensic adjudication of a dispute among members of an ecclesiastical organization over the proper interpretation of religious doctrine, the constitutional issue is whether the secular court should have abstained from deciding the matter:
"In . . . [cases involving disputes within hierarchical churches] *fn18 we think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority is, that, whenever the questions of discipline or of faith, or ecclesiastical rule, custom or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them." *fn19
If members of religious organizations could freely pursue their doctrinal grievances in civil courts, or legislatures could pass laws to inhibit or enhance religious activities, ecclesiastical liberty would be subjected to governmental interference and the "unmolested and unobstructed" development of opinion and belief which the First Amendment shield was designed to foster could be secularly undermined.
¶16 While the Court in Watson unequivocally banned judicial scrutiny of purely ecclesiastical decisions, *fn20 it has since discussed the possibility of "marginal civil court review" of these disputes. In Gonzalez v. Roman Catholic Archbishop of Manila *fn21 the Court stated:
"In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise. Under like circumstances, effect is given in the courts to the determinations of the judicatory bodies established by clubs and civil associations."
In a later case, Serbian Eastern Orthodox Diocese, Etc. v. Milivojevich, *fn22 the Court announced that its Gonzalez "fraud, collusion, or arbitrariness" exception was dictum only, concluding that:
"whether or not there is room for `marginal civil court review' under the narrow rubrics of `fraud' or `collusion' when church tribunals act in bad faith for secular purposes, no `arbitrariness' exception - in the sense of an inquiry whether the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church laws and regulations - is consistent with the constitutional mandate that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of a hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law." *fn23
In Serbian the Court held that:
"the First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them." *fn24
Although the Court has explicitly eliminated an "arbitrariness" exception to the rule that civil courts are prohibited from adjudicating religious disputes, whether these tribunals are still constitutionally permitted to review final ecclesiastical decisions for "fraud" or "collusion" has not recently been revisited.
¶17 The specific governmental interference with First Amendment rights challenged here is civil court enforcement of tort law against the Church of Christ Elders and not a judicial adjudication of the doctrinal propriety of the disciplinary measures carried out by the Elders against Parishioner. Parishioner did not attack the Elders' disciplinary actions on the basis that they contravened established Church of Christ polity. Rather, she claimed that the Elders' actions - whether or not in conformity to established church doctrine - amounted to a tortious invasion of her rights for which she was entitled to recover. While this dispute involved a religiously-founded disciplinary matter, it was not the sort of private ecclesiastical controversy which the Court has deemed immune from judicial scrutiny. *fn25 According to a federal circuit court case, Paul v. Watchtower Bible & Tract Soc. of New York, *fn26 "[e]cclesiastical abstention . . . provides that civil courts may not redetermine the correctness of an interpretation of canonical text or some decision relating to government of the religious polity." Unlike the instant controversy, the class of religious dispute which the Court has traditionally held to be outside the purview of civil judicature involves arguments among members over interpretation of church doctrine, or over actions taken pursuant to an allegedly incorrect construction of church rules. *fn27 Because the controversy in the instant case is concerned with the allegedly tortious nature of religiously-motivated acts and not with their orthodoxy vis-a-vis established church doctrine, the justification for judicial abstention is nonexistent and the theory does not apply.
¶18 The dispute between Parishioner and the Elders is clearly not immune from secular judicature and was properly before the trial court. Nevertheless, the nisi prius decision holding the Elders responsible in tort, and the subsequent verdict imposing liability, present a judicial and thus state interference with the alleged exercise of First Amendment rights which may not be sanctioned lest it pass constitutional muster. In testing the constitutionality of the court's action against the Elders and the jury's verdict in Parishioner's favor, the proper inquiry is whether, on the record, the Elders' decision to discipline Parishioner constituted such a threat to the public safety, peace or order that it justified the state trial court's decision to pursue the compelling interest of providing its citizens with a means of vindicating their rights conferred by tort law.
THE DISCIPLINARY ACTIONS TAKEN BY THE ELDERS AGAINST PARISHIONER BEFORE SHE WITHDREW HER MEMBERSHIP FROM THE CHURCH OF CHRIST DID NOT CONSTITUTE A THREAT TO PUBLIC SAFETY, PEACE OR ORDER AND HENCE DID NOT JUSTIFY STATE INTERFERENCE.
¶19 Prior to Parishioner's withdrawal of membership from the Church of Christ, the Elders approached her on three separate occasions to explain the doctrinally-mandated consequences confronting a member who had been accused of transgressing church law. According to the Elders, these three meetings comprised the initial stage of the withdrawal-of-fellowship procedure. In an effort to gain her repentance, they were required to "go and tell [the transgressing member her] fault." *fn28 Parishioner testified she was aware of the withdrawal-of-fellowship procedure and knew what it would entail.
¶20 The trial court's refusal to give summary judgment to the Elders on Parishioner's prewithdrawal tort claims *fn29 and its adjudication of this protected conduct constituted a governmental burden on the Church of Christ's right to its free exercise of religion. While the state has a compelling interest in providing a forum where its citizens can adjudicate their rights under tort law, the intrusion into the Elders' First Amendment freedoms which that interest requires is not constitutionally supportable. The Elders' protected conduct clearly did not justify governmental regulation on the ground that it posed a serious threat to public safety, health or welfare. Although "[t]he limits [on religious freedom] begin to operate whenever activities begin to affect or collide with liberties of others or of the public[,] [r]eligious activities which concern only members of the faith are and ought to be free - as nearly absolutely free as anything can be." *fn30
¶21 When people voluntarily join together in pursuit of spiritual fulfillment, the First Amendment requires that the government respect their decision and not impose its own ideas on the religious organization. Under the First Amendment people may freely consent to being spiritually governed by an established set of ecclesiastical tenets defined and carried out by those chosen to interpret and impose them:
"The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it." *fn31
Under the First Amendment's Free Exercise Clause, Parishioner had the right to consent as a participant in the practices and beliefs of the Church of Christ without fear of governmental interference. As the Church's chosen spiritual leaders, the Elders were responsible for providing guidance to all those who, like the Parishioner, had chosen to follow. Under the Free Exercise Clause the Elders had the right to rely on Parishioner's consensual participation in the congregation when they disciplined her as one who had voluntarily elected to adhere to their doctrinal precepts. Parishioner's willing submission to the Church of Christ's dogma, and the Elders' reliance on that submission, collectively shielded the church's prewithdrawal, religiously-motivated discipline from scrutiny through secular judicature.
¶22 We must hence direct the trial court that on remand partial summary adjudication be rendered against Parishioner for that portion of her claim which is pressed for the Elders' prewithdrawal acts. Whether a cause is to be remanded for new trial or returned with instruction to enter judgment for the prevailing party on appeal is governed by the teaching of Sherrill v. Sovereign Camp, W.O.W. *fn32 There we said:
"[I]f the [appellate] court is of the opinion that other evidence may be produced on a new trial or is unable to say that such evidence may not be produced, it will not render final judgment but will remand the case for a new trial."
An appellate court may properly reverse with directions to enter judgment only when "the evidence is manifestly insufficient and it does not appear that any new evidence can be procured on a retrial of the cause." *fn33 Before an appellate court can order an action, or any part of it, terminated on a judgment's reversal for insufficiency of the evidence, it must appear that the appellee cannot recover on a new trial - it is not enough that recovery appear improbable. *fn34
¶23 Applying these common-law rules to this case, we reverse and remand with instructions to dismiss those portions of Parishioner's tort claims by which she seeks recovery for the Elders' prewithdrawal conduct. While Parishioner has not had an opportunity to present specific evidence on the issue whether the Elders' prewithdrawal acts were a threat to the public safety, peace or order, we are convinced that affording her an opportunity to do so would be a meaningless gesture. Although we acknowledge that there may be some religiously motivated, consensual acts which could constitute a threat to the public safety, peace or order great enough to fall dehors First Amendment protection, *fn35 we hold that, on the record of this case, the Elders' prewithdrawal acts are shielded from scrutiny by secular ...