Brief Amici Curiae of Ethics & Religious Liberty Commission of The
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No. 20-1158 In the Supreme Court of the United States ———— THE NORTH AMERICAN MISSION BOARD OF THE SOUTHERN BAPTIST CONVENTION, INC., Petitioner, v. WILL MCRANEY, Respondent. ———— ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ———— MOTION FOR LEAVE TO FILE AND BRIEF FOR AMICI CURIAE THE ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION; THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS; THE NATIONAL ASSOCIATION OF EVANGELICALS; THE LUTHERAN CHURCH – MISSOURI SYNOD; CHURCH OF GOD IN CHRIST, INC.; CHRISTIAN LEGAL SOCIETY; JEWISH COALITION FOR RELIGIOUS LIBERTY; AND THE ISLAM & RELIGIOUS FREEDOM ACTION TEAM OF THE RELIGIOUS FREEDOM INSTITUTE IN SUPPORT OF PETITIONER ———— ALEXANDER DUSHKU R. SHAWN GUNNARSON Counsel of Record JAROM M. HARRISON KIRTON | MCCONKIE 36 South State Street Suite 1900 Salt Lake City, Utah 84111 (801) 328-3600 [email protected] Counsel for Amici Curiae WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002 MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE Pursuant to Supreme Court Rule 37.2(b), the Ethics & Religious Liberty Commission of the Southern Baptist Convention (ERLC), et al. respectfully move to file the attached brief as amici curiae in support of petitioner. All parties were timely notified of our intent to file an amicus curiae brief. Counsel for petitioner submitted a letter of blanket consent to the filing of all amicus briefs, which is on file with the Clerk of this Court. Counsel for respondents has not responded to repeated requests for consent. ERLC and the other religious organizations on this brief represent some of the Nation’s largest faith communities. They frequently participate as amici in cases before this Court that raise issues of concern to religious organizations. See, e.g., Br. Amici Curiae Religious Denominations and Other Religious Institu- tions Supporting Pet’rs, Am. Legion v. Am. Humanist Assoc., 139 S. Ct. 2067 (2019). Collectively, they offer a distinct perspective on the questions presented and the implications of this case for religious freedom under the First Amendment. Because amici believe that the attached brief will assist the Court in deciding whether to grant the petition, they hereby request leave to file this brief as amici curiae. Respectfully submitted, ALEXANDER DUSHKU R. SHAWN GUNNARSON Counsel of Record JAROM M. HARRISON KIRTON | MCCONKIE 36 South State Street Suite 1900 Salt Lake City, Utah 84111 (801) 328-3600 [email protected] Counsel for Amici Curiae March 18, 2021 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................ ii INTEREST OF AMICI CURIAE ........................ 1 SUMMARY OF ARGUMENT ............................. 1 ARGUMENT ........................................................ 5 REVIEW IS WARRANTED TO RESOLVE WHETHER THE FIRST AMENDMENT BARS A MINISTER’S TORT SUIT CONTESTING HIS DISCHARGE AND RELATED MATTERS ...................................... 5 A. The Fifth Circuit’s Departure From The Church Autonomy Doctrine Holds Exceptional Importance for Faith Communities ............................................. 5 B. Faith Communities Urgently Need The Court To Resolve Whether The First Amendment Bars Tort Suits By Ministers Contesting Their Discharge Along With Related Matters .................... 17 C. This Case Offers An Ideal Vehicle for Resolving the Questions Presented .......... 21 CONCLUSION .................................................... 23 (i) ii TABLE OF AUTHORITIES CASES Page(s) Agudath Israel of Am. v. Cuomo, 983 F.3d 620 (2d Cir. 2020) ...................... 13 Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648 (10th Cir. 2002) ................... 1-2, 7 Corp. Presiding Bishop of The Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1986) ............................... 8, 16, 19 Franco v. The Church of Jesus Christ of Latter-day Saints, 21 P.3d 198 (Utah 2001). .......................... 13 Himaka v. Buddhist Churches of Am., 917 F.Supp. 698 (N.D. Cal. 1995) ............. 14 Hosanna-Tabor Evangelical Church and Sch. v. EEOC, 565 U.S. 171 (2012) ..................................passim Hunter v. Bryant, 502 U.S. 224 (1991) .................................... 9 Hyung Jin Moon v. Hak Ja Han Moon, 431 F. Supp. 3d 394 (S.D.N.Y. 2019) ........ 13 Jones v. Wolf, 443 U.S. 595 (1979) ................................... 11 Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952) ....................................passim Kreshik v. Saint Nicholas Cathedral of the Russ. Orthodox Church of N. Am., 363 U.S. 190 (1960) .................................. 6-7, 19 iii TABLE OF AUTHORITIES—Continued Page(s) Larson v. Valente, 456 U.S. 228 (1982) ................................... 16 Mitchell v. Forsyth, 472 U.S. 511 (1985) ................................... 14-15 Mitchell v. Helms, 530 U.S. 793 (2000) .................................. 11 NLRB v. Catholic Bishop Chi., 440 U.S. 490 (1979) ................................... 11 Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987) ................................... 21 Our Lady of Guadalupe v. Morrissey-Berru, 140 S. Ct. 2049 (2020) ..............................passim Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem. Presbyterian Church, 393 U.S. 440 (1969) ..................................passim Serbian E. Orthodox Diocese for U.S. of Am. & Can. v. Milivojevich, 426 U.S. 696 (1976) ..................................passim Watson v. Jones, 80 U.S. (13 Wall.) 697 (1871) ...................passim CONSTITUTION U.S. Const. amend. I ...................................passim OTHER AUTHORITIES Carl H. Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power, 84 Iowa L. Rev. 1 (1998) ............... 8 iv TABLE OF AUTHORITIES—Continued Page(s) Douglas Laycock, Church Autonomy Revisited, 7 Geo. J.L. & Pub. Pol’y 253 (2009) ......................................................... 2, 16 Douglas Laycock, Towards a General Theory of the Religion Clauses, 81 Colum. L. Rev. 1373 (1981) ................................... 8 Encyclopedia of S. Baptists (Clifton J. Allen ed., 1958) ................................................... 14 Iggerot ha-Rambam (D.H. Baneth ed., 1946) .......................................................... 18 Sanford H. Cobb, The Rise of Religious Liberty in America (1902) ......................... 5 S. Baptist Convention, Baptist Faith and Message 2000 ............................................ 3 W. Cole Durham & Robert Smith, Religious Organizations and the Law (2020) ........... 17, 18 INTERESTS OF AMICI CURIAE1 This case involves tort claims by a removed minister against the entity tasked with missionary work in North America by the Southern Baptist Convention. Amici are churches and other religious organizations with a substantial interest in the constitutional right of faith communities to govern their own ecclesiastical matters. Several amici have participated in previous cases before this Court involving related issues under the First Amendment. See, e.g., Our Lady of Guadalupe v. Morrissey-Berru, 140 S. Ct. 2049 (2020); Hosanna-Tabor Evangelical Church and Sch. v. EEOC, 565 U.S. 171 (2012) (unanimous). We submit this brief out of concern that, without review, the Fifth Circuit’s decision will severely undermine the freedom of faith communities to govern their own religious affairs. SUMMARY OF ARGUMENT The First Amendment to the Constitution bars judicial review of truly ecclesiastical matters like ministerial employment, as well as church polity and government. This doctrine of church autonomy2 is a 1 Pursuant to Supreme Court Rule 37.6, amici state that no counsel for any party authored this brief in whole or in part and that no entity or person, aside from amici, their members, and their counsel, made any monetary contribution toward the preparation or submission of this brief. Pursuant to Supreme Court Rule 37.2, amici certify that counsel of record for all parties received timely notice of amici curiae’s intent to file this brief. 2 Both the Fifth Circuit and the district court labeled this rule the “ecclesiastical abstention doctrine.” see Pet. App. 1a, but that nomenclature is mistaken. “Church autonomy doctrine” more accurately expresses the idea that, unlike some forms of absten- tion, the First Amendment leaves courts no discretion to adjudi- cate ecclesiastical matters. See Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 655 (10th Cir. 2002) (“This church 2 declaration of independence for churches and denomi- nations, securing the freedom to govern their own internal religious affairs. Unfortunately, the Fifth Circuit’s decision here threatens that independence. The court of appeals concluded that the church autonomy doctrine does not bar Reverend Will McRaney’s tort suit against The North American Mission Board of the Southern Baptist Convention, Inc. (NAMB). See Pet. App. 8a. Specifically, the court of appeals held that McRaney’s complaint can be resolved by applying “neutral principles of tort law,” that discovery should proceed to determine whether NAMB had “valid religious reason[s]” for the actions McRaney contests, and that dismissal would be “premature.” Pet. App. 5a, 8a, 2a. That result is startling. McRaney admits that the case originated as “a battle of power and authority between two religious organizations”––both of them Southern Baptist––over ministry strategy. Compl. 3. As executive director of the Baptist Convention of Maryland/Delaware